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OPINIONS AND AWARD OF ARBITRATORS 



MARYLAND @ VIRGINIA 



BOUNDARY LINE 



MoGill A U'ithekow. 'Printers. 1107 E Street. Wasi ingtc 



OPINION OF ARBITRATORS. 



The undersigned are requested by the States of Virginia 
and Maryland to ascertain and determine the true line of 
boundary between thera. Having consented to do this in 
the capacity of arbitrators, we are about to make our award. 

To examine the voluminous evidence, historical, docu- 
mentary, and oral, to hear with due attention the able and 
elaborate arguments of counsel on both sides, and to con- 
fer full} 7 on the merits and demerits of this ancient contro- 
versy, required all the time we bestowed on it. 

The death of Governor Graham in the midst of our 
labors was a great loss to the whole country; but to us it 
was a special misfortune, for it deprived us suddenly of the 
industry, the talent, the wise judgment, and the scrupulous 
intregity upon which we had relied so much. Though 
these high qualities were fully supplied by his distinguished 
successor, the vacancy, occurring when it did, set back our 
proceedings nearly to the place of beginning and caused a 
delay of almost a year. 

Our first intention was to make a naked award without 
any statement of the grounds upon which it rested; but 
• after more reflection it seemed that the weight of the cause, 
the dignity of the parties, and the w T ide differences of opin- 
ion, grown inveterate by centuries of hostile discussion, 
made some explanation of our judgment desirable, if not 
necessary. 

The charter of Charles I to Cecilius, Baron of Baltimore, 
dated June 20th, 1632, gave to the grantee dominion over 
the territories described in it, and made him governor of 
the colony afterwards planted there, with succession to his 
heirs-at-law. These rights, proprietary as well as political, 



became vested in the State of Ma^land at the Revolution. 
Inasmuch as that State claims under the charter she mast 
claim according to it. 

Virginia, by her first constitution, as a free State (June 
29th, 1776) disclaimed all rights of property, jurisdiction, 
and government over territories contained within the char- 
ters of Maryland and other adjoining colonies. The force 
of this solemn acknowledgment is not, in our opinion, 
diminished by the dissatisfaction which Maryland, as well 
as other States of the Confederation, afterwards expressed 
with Virginia's claim to a northern and western border, 
including all lands ceded by France to Great Britain at the 
pacification of 1763. 

Inasmuch as both of the States are bound by the king's 
charter to Lord Baltimore, and both confess it to be the 
only original measure of their territory, it becomes a point 
of the first importance to ascertain what boundaries were 
assigned to Maryland by that instrument. By what lines 
was the colony of Maryland divided from those other pos- 
sessions of the British Crown to which Viginia afterwards 
succeeded as a result of her independence ? 

The original patent delivered to Lord Baltimore by the 
king is irrecoverably lost, and it is denied — at least it is 
not admitted — that we have an accurate copy. It was 
registered in the high court of chancery when it passed 
the seal, and an attested transcript from the rolls office is 
produced. It is written in the law Latin of the period to 
which it belongs and many of the words are abbreviated. 
Auother copy nearly, if not exactly, like that from the 
rolls was deposited in the colonial office and thence re- 
moved to the British Museum. The latter copy was 
changed long subsequent to the date of the charter by a 
person who added some words, and extended others by 
interlining omitted terminations. This is alleged to have 
been done for the purpose of making it correspond with 
the original, which, according to the same allegation, was 
borrowed from a member of the Calvert family for that 
purpose. We reject this whole story as apocryphal. The 



3 



interlineations were unauthorized except by the judgment 
of the person who wrote them that he was supplying elipses 
or giving in full the true words meant by the contracted 
orthography. We are obliged to believe that the patent 
was enrolled with perfect accuracy. The conclusive pre- 
sumption of law is that the high and responsible officers 
charged with that duty did see it performed with all due 
fidelity. ~No doubt of this can justly be raised upon the 
fact that abbreviated words are found in the registry. 
Why should not these be in the original ? Nay, why 
should we expect them not to be there? That mode of 
writing was the universal custom of the time. It was 
used in all legal papers and records as long as the law 
spoke Latin. A deed in which these abbreviations oc- 
curred was not thereby vitiated. What was the harm of 
writing A. D. for anno domini, fi. fa. for fieri facias, or ca. 
sa. for capias ad satisfaciendum ? Hered. et assigned, was as 
good as heredibus et assignatus suis, if all legists understood 
that one as well as the other was limitation of the fee to 
heirs and assigns. Adjectives and substantives without 
terminations to indicate gender, number, or case did not 
lose their meaning, and the omission of the concluding 
syllable might be some advantage to a conveyancer who 
was rusty in his syntax. This habit of contracting words 
pervades, not ouly the deeds, but the criminal pleadings 
of that time. A public accuser, doubtful if the offense he 
was prosecuting violated two acts of Parliament or only 
one, charged it as contra forman statut., and read the last 
word statuti or statutorum, as the state of the case might 
require. The defendant's averment of his innocence was 
recorded as a plea of non cut. When the Attorney General 
reasserted the guilt of the accused and declared his readi- 
ness to prove it, he took one Latin and one iSTorman- 
French word, truncated them both, and said — cuL prit. 
Even the last and most tragical part of the record in a 
capital case, the judge's order to hang the prisoner by the 
neck, was curtly but very intelligibly written — sas. per col. 
We are satisfied that the office copy is true; that it is 



4 



exactly like the original ; and that the use of abbreviated 
words does not impair the validity of the instrument. 
Moreover, that part of the charter which defines the bound- 
aries of the province speaks, not equivocally, but in terms 
so clear and apt that the intent is readily perceived. It 
remains to be seen whether we can apply the description 
to the subject-matter by laying the lines on the ground. 
To that end it is necessary to ascertain how the geography 
of the country was understood by the King and Lord Bal- 
timore at the time when the charter was made. 

In the great litigation between Penn and Lord Balti- 
more a bill drawn up by Mr. Murray, (afterwards Lord 
Mansfield,) or by some equity pleader under his immediate 
direction, avers in substance that Charles I and the min- 
isters whom he consulted on Lord Baltimore's application 
h&d the map of Capt. John Smith before them when the 
boundaries of the colony were agreed on. This was neither 
denied nor admitted in the answer of the defendant, who, 
being third in descent from the applicant, had no personal 
knowledge about it. But we take the fact to be certainly 
true, not .only because we have the assertion of it by Penn 
and his very eminent counsel, but because it is well known 
that Smith's map was the only delineation then extant of 
that region, and his History of Virginia, to which the map 
was prefixed, had been before, and continued for a long 
time afterwards, to be the only source of information con- 
cerning its geography. Besides, a comparison of the map 
with the charter will show by the similarity of names, 
spelling, &c, that one must have been taken from the 
other. 

The editions of Smith's History, published by himself 
in 1612 and 1629, have been produced, with the map there- 
to prefixed. Besides, we have one printed in 1819 by 
authority of Virginia from the same plate used by Smith 
himself two hundred years before, and found, by a curious 
accident, in a promiscuous heap of old metal which had 
been imported from England to some town in Penns}d- 
vania. 



5 



With the charter in one hand and the map in the other 
it may seem an easy task to run these lines. But there are 
difficulties still. The map, though a marvelous produc- 
tion, considering how and when it was made, is not per- 
fectly correct. Smith could not see and measure every- 
thing for himself nor always depend upon the observations 
of others. With his defective instruments he could not 
get the latitude and longitude truly. He laid down some 
points and places in the wrong relation to each other and 
some not unimportant to us he left out altogether. There 
are inaccuracies here and there in the configuration of a 
coast, the shape of an island, or the course of a river. 
Uufortunately the style of his History is so confused and 
obscure that it throws no light on the dark parts of the 
map. As a writer he had great ambition and small capa- 
city; he could give some interest to a narrative of his own 
adventures, but any kind of description was too much for 
his powers. There is another trouble: scarcely any of the 
places marked on Smith's map are now popularly known 
by the names he gave them. Not only the names bur the 
places themselves have been much changed. Consider- 
able islands are believed to have been washed away or 
divided by the force of the waters. Headlands which 
stretched far out into the bay have disappeared, and the 
shore is deeply indented where in former times the water 
line was straight or curved in the other direction. Add % 
to this a certain amount of human perversity with which 
the subject was handled in colonial days and it is not sur- 
prising that representatives of the two States have, with 
the most upright intentions, failed to agree in their views 
of it. We are to reach, if possible, the truth and very 
right of the case. 

The boundaries of Maryland are described in the charter 
as beginning at Watkins' Point and running due east to 
the sea, up the shore of the ocean and the Delaware bay, 
to the fortieth degree of latitude; thence westward, along 
that degree, to the longitude of the headwater of the Poto- 
mac; thence southward, to that river, and by it or one of 



6 



its banks, to Cinquack on the Chesapeake; and from Cin- 
quack, straight across the bay, to the place of beginning. 
With the eastern and western border we have nothing to 
do. Our interest in the description of the Maryland line 
begins at the northwest angle, where her territory becomes 
contiguous to that of Virginia. 

That line, on the western side, has been run and marked 
along its whole course, and at both termini, in a way which 
commands the acquiescence of both States. No question 
is raised here about the location of it. But it is necessary 
to look somewhat narrowly into the call for it which the 
charter makes, because that may influence our judgment 
on the lines which run from the head of the river to the 
sea, every inch of which is contested. 

The State of Virginia, through her commissioners and 
other public authorities, adhered for many years to her 
claim for a boundary on the left bank of the Potomac. But 
the gentlemen who represent her before us expressed with 
great candor their own opinion that a true interpretation 
of the King's concession would divide the river between 
the States by a line running in the middle of it. This lat- 
ter view they urged upon us with all proper earnestness, 
and it was opposed with equal zeal by the counsel for 
Maryland, who contended that the whole river was within 
the limits of the grant to Lord Baltimore. 

When a river is called for as a boundary between two 
adjacent territories (whether private property or public 
domains) the line runs along the middle thread of the 
water. A concession of lands to a stream does not stop at 
one bank or cross over to the other, but finds its limit mid- 
way between them. But a river may be included or ex- 
cluded if the parties choose to have it so. If the intent is 
expressed that the line shall be upon one bank or another 
the mere force of construction cannot put it anywhere else; 
the natural interpretation is the legal and proper one. 

This is too obviously just to need the support of author- 
ity ; but it was well illustrated by the Supreme Court of 
the United States, in the case of Ingersoll v. Howard, (13 



7 



How., 381.) Alabama claimed to the middle of the Chat- 
ahoochee by virtue of a boundary described in a concession 
from Georgia thus: " Beginning on the tvestern bank of the 
Chatahooehee river where the same crosses the boundary 
line between the United States and Spain; running thence 
up the said river and along the western bank thereof," &c. 
The court held that these words established the line of 
boundary upon the western bank. There is some resem- 
blance between that case and the one under consideration. 

The nortnern boundary of Maryland is by the charter to 
run westward to the true meridian of the first fountain of 
the Potomac. That point being ascertained, it shall turn 
at right angles and run towards (literally against) the 
south — " vergendo versus meridiem " — where ? £< ad ulterior am 
predicti fluminis ripam" — to the further bank of the afore- 
said river. Approaching the river from the north the 
further bank is the south bank of course. The description 
proceeds without a pause thus : " et earn sequendo qua plaga 
occidentalis ad meridionalem special usque ad locum quendam 
appellatum Cinquack." Now, the words "earn sequendo" 
are a direction that something shall be followed in running 
the line between the point already fixed on the south bank 
of the Potomac, where it rises in the mountain, and Cin- 
quack, which is on the same side of the river, near to its 
mouth. What shall we follow? Clearly earn ripam, and 
clearly not id flumen, if we take the grammatical sense of 
the phrase. Another consideration impresses us a good 
deal. Lawyers in the reign of Charles I wrote Latin in 
the idiom of the vernacular tongue. We would naturally 
expect to see the thought of these parties expressed by 
words arranged in the English order, thus : ad ulteriorem 
ripam predicti fluminis et sequendo earn. The other and 
more classical collocation was not adopted for its euphony, 
but for the sake of precision. It brought ripam and earn 
into close juxtaposition, and made the antecession so im- 
mediate that it could not be mistaken. The interjected 
phrase " qua plaga occidentalis ad meridionalem spectat" has 
had its share of the minute verbal criticism bestowed upon 



8 



the whole document; but we see nothing in it except an 
attempt (perhaps not very successful) to describe the as- 
pect of the western shore where it turns to the south. 
Certainly there is nothing there which requires the line 
to leave the river bank. Apart from all this it looks 
utterly improbable that the two termini of this line should 
both have been fixed on the south side of the river with- 
out a purpose to put the line itself on the same side. The 
intent of the charter is manifest all through to include the 
whole river within Lord Baltimore's grant. It seems to 
us a clearer case than that decided in Ingersoll v. Howard. 

For these reasons we conclude that the charter line was 
on the right bank of the Potomac, where the high-water 
mark is impressed upon it, and that line follows the bank 
along the whole course of the river, from its first fountain 
to its mouth, and " usque ad locum quendam appellaium Cin- 
quack. ' 9 

Where is the place called Cinquack? It must have had 
a certain degree of importance in Smith's time as a landing 
place, a village, or the residence of some aboriginal chief. 
But there is now no visible vestage of it. Even its name 
has perished from the memory of living men. Neverthe- 
less, the place where it once was can be easily found. The 
charter describes it as " prope fluminis ostium" — near the 
mouth of the river; and Smith has marked it on his map 
about six miles south of the place where the river joins, the 
bay. This point was no doubt chosen as the terminus of 
the long river line, because it was the only place near the 
mouth of the Potomac, on that side, to which Smith's map 
gave a name ; and it furnishes one among many circum- 
stantial proofs that no other map was consulted in drafting 
the charter. Having found this corner it becomes our 
duty to trace the lines which lead us thence over the bay 
and across the eastern shore to the sea. 

From Cinquack to the ocean the charter gives only two 
lines. One, starting at Cinquack goes straight to Wat- 
kins Point, the other runs from Watkihs Point due east 
to the sea shore. There will be no possible mistake about 



9 



these lines if we can but find out the precise situation of 
Watkins Point. 

This point being the commencement and closing place 
of the boundary is twice named, and once its locality is 
given with reference to other objects. It is described as 
lying "juxta sinur,i prediction prope flumen de Wighco ;" that 
is to say, on (or close to) the aforesaid bay (the Chesapeake) 
and near the river Wighco. Looking at Smith's map we 
find a cape extending southwestwardly from the main- 
land of the eastern shore. This cape is called Watkins 
Point by Smith himself on his map, and he has marked 
the waters on one side Chesapeack bay, and on the other 
Wighco flumen. Turning to the modern maps, and espe- 
cially to those of the Coast Survey, where everything is 
measured with fractional accuracy, we find the same point 
of land laid down, not quite in the same latitude nor de- 
lineated with exactly the same shape, but bordered by the 
same waters, and with no variance which makes its identity 
at all doubtful. It is at present the extreme southwestern 
point of Somerset county in Maryland at Cedar straits, 
juxia the Chesapeake and prope the Pocomoke, which is 
now the name for Wighco. Being the Watkins Point of 
Smith's map it is the Watkins Point of the charter. 

This conclusion appears to be inevitable from the prem- 
ises stated; but it does not receive universal assent. We 
must therefore notice the principal grounds on which its 
correctness is impugned. 

In the first place, the fundamental fact is denied that 
Smith by his own map affixed the name of Watkins Point to 
the headland in question. In other words, it is alleged 
that, though the point is laid down and the name written 
in proximity to it, the one does not apply to the other. 
Let the map speak for itself. An inspection of it w T ill 
show that all the names of such points are written in the 
same way. 'Nor is there any other point to which it can 
with reasonable propriety be referred. 

The map has been uniformly read as we read it. Lord 
Baltimore showed how he understood it. In 1665, only 



10 



three years after the date of his charter, he printed what 
he called a "Relation of Maryland," and prefixed to it a 
map on which Watkins Point is laid down at Cedar straits, 
with the beginning and closing lines of his boundary run- 
ning from and to it. It is not likely that he could be mis- 
taken, nor is it supposed that he fraudulently misstated 
the fact, and he was not contradicted by the ministers of 
the Crown or by anybody interested in the Virginia planta- 
tion. 

In 1670 Augustin Herrman, the Bohemian, published a 
map fuller than the previous ones, and there we have Wat- 
kins Point at Cedar straits very conspicuously marked, 
and the two lines closing at its southern end. What 
makes this stronger is that in 1668 the line between the 
colonies had been marked east of the Pocomoke by Cal- 
vert and Scarborough on a latitude considerably higher 
than an eastern line from Watkins Point; but Herrman 
considered Watkins Point so definitely fixed, and the call 
for a straight eastern line thence to the ocean so overrul- 
ing, that he assumed the coincidence of the Scarborough 
line with his own, and so laid it down. 

In the map of Peter Jefferson and Joshua Fry, of which 
a French copy was engraved and printed at Paris in 1755, 
and a second English edition at London in 1775, dedicated 
by the publishers to the Lords Commissioners of Trade 
and Plantations, we find Watkins Point unmistakably 
laid down at the mouth of the Pocomoke, with the Scar- 
borough and Calvert line from the sea to the Pocomoke 
so drawn that a westward extension of it would strike 
exactly or very nearly that place. 

Mr. Thomas Jefferson published his is~otes on Virginia 
in 1787, with a map, on which the strongly-marked bound- 
ary runs to the ocean by an East line from Watkins Point 
at Cedar straits; and he, like Herrman and the others, took 
it tor granted that this, and no other, was the line marked 
by Scarborough and Calvert. 

Mitchell's map (1750-1755) bears similar testimony to 



11 



the situation of Watkins Point; so do several others of 
the last century and many of more recent times. 

It is useless to-particularize more authorities like these. 
Let it be enough to say that all geographers for two cen- 
turies and a half have understood Smith's map as calling 
what is now the southern extremity of Somerset county — 
Watkins Point; nor is it known otherwise in the general 
speech of the country. Smith's designation has adhered 
to it through all changes. If that be not its true name 
it never had any name at all. 

But the fact rests on stronger proof than that. It is 
established by the uniform and universal consent of both 
States and all their people. Maryland steadily claimed it 
as her actual border, and Virginia never practically denied 
the claim by taking territory immediately above it. East- 
ward and westward, where the lines were invisible, both 
parties made mistakes. But Watkins Point or the terri- 
tory near it was not debatable ground. All men, except 
perhaps Col. Scarborough, recognized and respected the 
great landmark when they came within sight of it. 

But even that is not all. In 1785 some of the most em- 
inent men of the two States came together at Mount 
Vernon to arrange the difficulties between them. Stand- 
ing face to face those commissioners concurred in saying 
that Watkins Point was the boundary mark to which the 
line from the western shore should run; and they described 
its situation very unequivocally when they spoke of it as 
" Watkins Point, near the mouth of the Pocomoke river." 
Remembering that this compact was drawn up with most 
conscientious care, agreed to after cautious examination, 
ratified by the Legislatures of both States, rigidly adhered 
to by all parties ever since, and still regarded as of such 
sacred obligation that all power to touch it is withheld 
from us, we feel ourselves literally unable to fix the Wat- 
kins Point of the charter anywhere else than at the place 
then referred to as the true one. 

It is suggested that the charter could not have meant 
the point at Cedar straits, because it is called a promontory , 



12 



which implies hign land, whereas this is a dead level 
rising but slightly above the waters on either side. That 
argument is easily disposed of. The map did not indicate 
whether the land was high or low, and therefore care was 
taken to employ two alternate terms, of which one would 
surely fit the case if the other would not. The charter 
says that the beginning line shall run east to the ocean "a 
promontorio sine capite term vocato Watkins Point;" 
from the promontory or headland. The same abundant 
caution is observed again when the point comes to be 
mentioned as the terminus of the closing line, which is 
required to run u per lineam brevissimam usque ad prediction 
promontorium sine locum voeatum Watkins Point." Thus 
the controlling call of the charter is for Watkins Point, 
by its given name, whether it be a high promontory or a 
low headland, or merely a place whose character is not 
properly signified by either word. 

We proceed to another objection. Smith, in his account 
of the explorations made by himself and others with him, 
says, in effect, that they landed at divers places mentioned, 
(among others, Watkins Point,) and at all those places 
marked trees with crosses as " a notice to any, Englishmen 
had been there." 'Now there are not, and probably never 
were, trees capable of being so marked on the Watkins 
Point which lies at Cedar straits ; therefore it is argued 
that Watkins Point is not Watkins Point. Those who 
think this deduction legitimate would remove the point in 
question from the place where Smith puts it on his map, 
where all geographers have placed it, where the charter 
describes it to be, and where by the general consent it is, 
rather than believe that Smith, in his confused way of 
writing, exaggerated the truth or committed an error 
about so unimportant a matter as that of marking trees 
at all points where he landed. 

It is alleged that another place, higher up the shore 
and near to the mouth of the Annamessex, is the true 
Watkins Point of the charter. There is (or rather there 
was) a point there of considerable magnitude and some 



13 



elevation, which has now entirely disappeared. Smith 
noted it as a triangular extension of the mainland into the 
bay ; in 1665 persons who had then recently seen it de- 
scribed it as "a small spiral point," whatever that may 
mean ; and later evidence shows that there was a peach 
orchard upon it. In a sworn affidavit of Captain Jones, 
used in 1665 by Virginia, it is referred to as " a small point 
described on Captain Smith's map without a name." 
Why should we suppose this to be the place called for in 
the charter as Watkins Point? It was not so nominated 
on the map or anywhere else. Smith, so far from ever 
speaking or writing about it as Watkins Point, gave it 
another and a different name. Dr. Russell, who was with 
him when he made his explorations, says that it was called 
Point Ployer, ' k in honour of that most honorable house of 
Mousey, in Brittaius, that in an extreme extremity once 
relieved our Captaine." Can anything be more complete 
than the failure of this effort to substitute the place called 
Point Ployer for the place called Watkins Point? 

But it is said that Scarborough and Calvert agreed in 
1668 that the line from the sea should run to the Anna- 
messex, and not to the Pocomoke. That is not the point 
of the present question. We are now inquiring where the 
boundaries were originally fixed. A conventional arrange- 
ment of those Commissioners might bind their constituents 
for the after time, but it could not change the preexisting 
facts of the case or make that a false which before was a 
true interpretation of the charter. Nor is any opinion or 
conclusion expressed or acted upon by them entitled to 
much consideration as evidence. If Philip Calvert thought 
that the charter limit was at Point Ployer he was grossly 
deceived, and Col. Scarborough knew very well that it was 
not there, for he had previously declared on his corporal 
oath that the ''small spiral point" near the Annamessex 
was south of the charter call "about as far as a man 
could see on a clear day." 

Some stress is laid upon another fact. In 1851 the 
Fashion, a vessel of which John Tyler, a Marylander, was 



14 



owner and master, was arrested for dredging in Maryland 
waters. The justice of the peace before whom the pro- 
ceeding was instituted condemned her, but on appeal to 
the County Court the judgment was reversed. The record 
does not show the gronuds of the condemnation or the 
reasons of the reversal ; but Tyler himself deposes from 
memory that he was finally cleared on the testimony of 
two old men, who swore to a State line running across 
Smith's Island, about three-quarters of a mile above Horse 
Hammock and over the bay to the mouth of the Anna- 
messex, which would chrow the locus in quo of the offense 
within the jurisdiction of Virginia. If we assume that the 
issue, the evidence, and the legal reasons of the judgment 
are correctly reported by an unlearned man a quarter of a 
century after the trial, the inference is a fair one that the 
court of Somerset county believed the line to be where the 
witnesses said it was, and not at Horse Hammock on one 
side of Tangier sound or at Watkins Point on the other. 
But are we now bound to accept that evidence as infallibly 
true? If it were delivered before us in the pending cause 
by the witnesses themselves we would take it at its worth. 
Its probative force is certainly not increased by being 
fished up from the oblivion of twenty five-years and pro- 
duced to us at second hand. We do not understand that 
anybody supposes the judgment itself to be binding as a 
determination of the subject-matter between the two States. 
The traditionary line of Tyler's grandfather and old Mr. 
Lawson must stand or fall by the natural strength of the 
facts which support and oppose it. Now, it is perfectly 
ascertained that Virginia in 1851 did not pretend to have 
any claim on Smith's Island, above Horse Hammock, nor 
within the limits of Somerset county on the bay shore 
above Watkins Point. This record of the Fashion case, 
considered as evidence of a line at Aunamessex, is illegal, 
insufficient, and unsatisfactory, while the proofs which 
show that in truth the line was at Watkins Point are 
irresistible and overwhelming. 

If we are right thus far it follows that the original line 



15 



as fixed and agreed by the King and Lord Baltimore runs 
from Cinquack by a straight line to the extreme south- 
western part of Somerset county, Maryland, which we find 
to be the true Watkins Point of the charter, and thence by 
a straight line to the Atlantic ocean. These lines will be 
seen on the accompanying map, marked and shaded in blue. 

But this is not the present boundary. How firmly so- 
ever it may have been fixed originally a compact could 
change it, and long occupation inconsistent with the charter 
is conclusive evidence of a concession which made it lawful. 

Usucaption, prescription, or the acquisition of title 
founded on long possession, uninterrupted and undisputed, 
is made a rule of property between individuals by the law 
of nature and the municipal code of every civilized coun- 
try. It ought to take place between independent States, 
and according to all authority it does. There is a supreme 
necessity for applying it to the dealings of nations with one 
another. Their safety, the tranquillity of their peoples, 
and the general interests of the human race do not allow 
that their territorial rights should remain uncertain, sub- 
ject to dispute, and forever ready to occasion bloody wars. 
(See Vattel, Book II, chap. 11, and Wheaton, Part II, 
chap. 4, sec. 4, citing Grotius PufFendorf and Ruther forth.) 
The length of time which creates a right by prescription 
in a private party raises a presumption in favor of a State, 
that is to say, twenty years. (Knapp's Rep., 60 to 73.) 
It is scarcely necessary to add that the exercise of a privi- 
lege, the perception of a profit, or the enjoyment of what 
the common law calls an easement, has the same effect as 
the possession of corporeal property. It behooves us, then, 
to see whether the acts or omissions of these States have 
or have not materially changed their original rights and 
modified their boundaries as described in the charter. 
We will look first at the Potomac. 

The evidence is sufficient to show that Virginia, from 
the earliest period of her history, used the south bank of 
the Potomac as if the soil to low-water mark had been her 
own. She did not give this up by her constitution of 



16 



1776, when she surrendered other claims within the char- 
ter limits of Maryland; but on the contrary she expressly 
reserved "the property of the Virginia shores or strands 
bordering on either of said rivers, (Potomac and Poco- 
moke,) and all improvements which have or will be made 
thereon." By the compact of 1785, Maryland assented to 
this, and declared that " the citizens of each State respect- 
ively shall have full property on the shores of Potomac 
and adjoining their lands, with all emoluments and advan- 
tages thereunto belonging, and the privilege of making 
and carrying out wharves and other improvements." We 
are not authority for the construction of this compact, be- 
cause nothing which concerns it is submitted to us; but 
we cannot help being influenced by our conviction (Chan- 
cellor Bland notwithstanding) that it applies to the whole 
course of the river above the Great. Falls as well as below. 
Taking all together we consider it established that Virginia 
has a proprietary right on the south shore to low-water 
mark, and, appurtenant thereto, has a privilege to erect 
any structures connected with the shore which may be 
necessary to the full enjoyment of her riparian ownership, 
and which shall not impede the free navigation or other 
common use of the river as a public highway. 

To that extent Virginia has shown her rights on the 
river so clearly as to make them indisputable. Her efforts 
to show that she acquired, or that Maryland lost, the isl- 
ands or the bed of the river, in whole or in part, have been 
less successful. 

To throw a cloud on the title of Maryland to the south 
half of the river the fact is proved that in 1685 the King 
and Privy Council determined to issue a quo warranto 
against the Proprietary of Maryland, " whereby the powers 
of that charter and the government of that province might 
be seized into the King's hands" for insisting on " a pre- 
tended right to the whole river of Potowmack" and for 
other misdemeanors. This was a formidable threat, con- 
sidering what a court the King's Bench was at that time: 
but it never was carried out, and we can infer from it only 



17 



that the then Lord Baltimore was not in favor with the 
ministry of James II. 

What is called the Hopton grant was confirmed to the 
Earl of St. Albans and others in 1667 by Charles II. It 
included all the land between the Rappahanock and the 
Potomac, together loith the islands within the banks of those 
rivers and the rivers themselves. The rights of the original 
grantees became vested in Lord Fairfax and his heirs, w r ho 
sold large portions of it, and as to the rest, the Common- 
wealth first took it by forfeiture and afterwards bought out 
the^Fairfax title from the alienees of his heirs. It is not 
pretended that this grant could, proprio vigore, transfer the 
title of the Potomac islands from Lord Baltimore to the 
Earl of St. Albans ; but it is argued that, as Lord Balti- 
more must have known of it, and did not protest or take 
any measure to have it canceled, his silence, if not con- 
clusive against him by way of equitable estoppel, was at 
least an admission that he did not own the islands or the 
bed of the river in which they lay. We answer that he 
had a right to be silent if he chose; his elder aud better 
title, which was a public act, seen and known of all men, 
spoke for him loudly enough. Besides that, his subse- 
quent possession of the islands was the most emphatic 
contradiction he could give to any adverse claim, or pre- 
tense of claim, under the Hopton grant. 

But these conflicting grants of the islands increased 
the importance of knowing how and by whom they had 
been occupied. The exclusive possession of Maryland was 
affirmed and denied upou evidence so uncertain that we 
thought it right to postpone our determination for several 
weeks, so as to give time for the collection of proper 
proofs. When these came forth they showed satisfactorily 
that Maryland had granted all the islands, taxed the 
owners, and otherwise exercised proprietary and political 
dominion over them. Three Virginia grants were pro- 
duced which purported to be for islands in the Potomac, 
but on examination of the surveys it appeared that they 
were not in, but upon, the river. One is in Nomini bay, and 
2 



18 



the other two are called islands only because they lie with 
one side on the shore, while the other sides are bounded 
by inland creeks. All are on the Virginia side of the 
low-water mark, which we have said was the boundary 
between the States. 

It being thus shown that there is nothing to deflect the 
line from the low-water mark, we are next to see whether 
its eastern terminus has been changed. That it certainly 
has. Cinquack was quietly ignored so long ago that no 
recollection, nor even tradition, exists of any claim by 
Maryland on the bay shore below the Potomac. When 
the compact of 1785 was made, Smith's Point, precisely at 
the mouth of the river, on the south side, was assumed by 
both States to be the starting place of the line across the 
bay. 

Nor does the line now run from Smith's Point, per lineam 
brevissimam to Watkins Point. It holds a course far 
north of that, so as to strike Sassafras Hammock, on the 
western shore of Smith's island, and take in Virginia's old 
possession there. It reaches Watkins Point not by the 
one straight line called for in the charter, but by a broken 
line, or rather by several lines uniting at angles more or 
less sharp. Before we explain how this came about it is 
necessary to observe some facts in the general history of 
the eastern shore boundary. 

While the situation of Watkins Point at the mouth of 
Pocomoke was not doubted, nobody knew where the lines 
running to and from it would go, or what natural objects 
they would touch in their course. East and west, where- 
ever the solitary landmark could not be seen, a search for 
the boundary was mere guess-work, and some of the con- 
jectures were amazingly wild. The people there seem to 
have had none of that ready perception of courses and dis- 
tances which an Indian possesses intuitively, and which a 
pioneer of the present day acquires with so much facility. 

Almost immediately after the planting of the Maryland 
colony, some of its officers claimed jurisdiction on the 
eastern shore nearly twelve miles south of a true east 



19 



line from Watkins Point. Sir John Harvey, then Gov- 
ernor and Captain-General of Virginia, with the advice of 
the council, conceded the claim, and on the 14th of Octo- 
ber, 1638, issued a proclamation declaring the boundary 
to be on the Anancock, and commanding the inhabitants 
of his colony not to trade with the Indians north of that 
river. We discredit the allegation that this was a fraudu- 
lent collusion between the Governor of Virginia and the 
agents of the Maryland proprietary. It was a mutual mis- 
take — a very gross one, to be sure — and not long persisted 
in. It serves now only to show how loose were the notions 
of that time about these lines. 

Soon after this (but the time is not ascertained) a similar 
blunder was made westward of Watkins Point. This was 
not a claim by Maryland below the true line, but by Vir- 
ginia above it. Smith's Island lies out in the Chesapeake 
bay, quite north of any possible line called for by the 
charter. But the relative situation of that island being 
misapprehended, Virginia took quiet and unopposed pos- 
session upon it, and holds a large part of it to this day. 

No willful transgression of the charter boundary took 
place before 1664. Then rose Col. Edmond Scarborough, 
the King's surveyor general of Virginia. His remarkable 
ability and boldness made him a power in Virginia and 
gave him great mental ascendency wherever he went. He 
had no respect for Lord Baltimore's rights, and, when he 
could not find an excuse for invading them, he did not 
scruple to make one. At the head of forty horsemen, "for 
pomp and safety," he made an irruption into the territory 
of Maryland, passing Watkins Point and penetrating as 
far as Manoakin, where he arrested the officers of the 
Proprietary and harried the defenseless people. 

To justify this proceeding he referred to an act of the 
Grand Assembly of Virginia,, (passed without doubt by his 
influence,) which declares Watkins Point to be above 
Manoakin, authorizes the surveyor general to make pub- 
lication commanding all persons south of Watkins Point 
to render obedience to His Majesty's Government of Vir- 



20 



ginia, and requiring Col. Scarborough, with Mr. John 
Catlett and Mr. John Lawrence, or one of them, to meet 
the Maryland authorities upon due notice, (if they were 
not fully convinced of their intrusions,) and debate and 
determine the matter with them. Scarborough did none 
of these things. His conduct throughout violated the act 
of the Virginia assembly as grossly as it violated the Mary- 
land charter. 

To vindicate the claim for boundary as high up as Man- 
oakin he put in his own affidavit and that of seven others 
that the place described in Capt. Smith's map for Watkins 
Point was not at the Pocomoke nor at the Annamessex, 
but as far above the small spiral point at the mouth of the 
latter river as a man could see in a clear day, and that the 
Pocomoke was never called or known by the name of 
Wighco. This was sworn to in the very face of the map 
itself, where Watkins Point was described as lying on the 
Pocomoke, and where the Pocomoke was distinctly named 
the Wighco 

In June, 1664, Charles Calvert, Lieutenant Governor of 
Maryland, sent Philip, the Chancellor, on a special mission 
to Sir William Berkeley, then Governor of Virginia, to 
demand justice upon Scarborough for entering the Province 
of Maryland in a hostile manner, for outraging the inhab- 
itants of Annamessex and Manoakin by blows and im- 
prisonment, for attempting to mark a boundary thirty 
miles north of Watkins Point, and for publishing a procla- 
mation at Manoakin wholly unauthorized. Col. Scar- 
borough was too great a man to be punished, but his acts 
were repudiated, the claim for his spurious boundary was 
disavowed, Watkins Point was again fully acknowledged 
to be where it always had been, and so the land had rest 
for a season. 

But the quiet time did not last long. The very next 
year we find Colouel Scarborough on the east side of the 
Pocomoke, north of the boundary, cutting out a large 
body of Lord Baltimore's land, and dividing it by surveys 
to himself and his friends. The necessity was manifest 



21 



for having the true line traced and marked on the ground 
between Watkins Point and the sea. To do this Colonel 
Scarborough was appointed a commissioner on one side, 
and Philip Calvert on the other. But, instead of closing 
the controversy as their respective constituents intended, 
their work was done so imperfectly that it has been a 
principal cause of error and misunderstanding ever since. 

Their instructions, as recited by themselves, required 
them to "meet upon the place called Watkins Point." 
That they did meet there does not appear, but they say 
that, " after a full and perfect view of the point of land 
made by the north side of Pocomoke bay and the south 
side of Annamessex, we have and do conclude the same 
to be Watkins Point, from which said point, so called, we 
have run an east line, agreeable with the extremest part of 
the western angle of said Watkins Point, over the Poco- 
moke river, to the land near Robert Holston's, and there 
have marked certain trees which are continued by an east 
line to the sea," &c. ; and they agreed that this should be 
received as the bounds of the two provinces " on the 
eastern shore of the Chesapeake bay." Whosoever shall 
try to get at the sense of this document will find himself 
"perplexed in the extreme." What was it that they con- 
cluded to be Watkins Point? Not the whole body of the 
territory between the Annamessex and the Pocomoke; 
nobody understands it in that way. Not Point Ployer; for 
they both knew, and one of them swore, it was not there. 
Did they actually run any line west of the Pocomoke ? If 
yes, they must have known with perfect certainty where 
the true line would cross the river; and in that case what 
was the necessity for founding a mere conclusion about it 
upon the lay of the land between the two bays ? If it was 
then ascertained by actual demonstration with the com- 
pass that a western extension of the marked line would 
strike Watkins Point, why does it not strike that point 
now, instead of terminating where it does, far above, at 
-the Annamessex? Again, why was it not marked? Why 
was it never recognized, acknowledged, or claimed by 



22 



either party afterwards? Our rendering may seem a strain 
upon the words, but we infer from the paper and the 
known facts of the case that the commissioners, instead 
of meeting at Watkins Point, came together on the east 
bank of the Pocomoke, from thence took a view of the 
country on the other side, and thereupon erroneously con- 
cluded that an east line running from Watkins Point 
would cross the Pocomoke at the place near Holston's, 
where they marked certain trees. This being satisfactory 
to themselves, they proceeded, without further prelim- 
inary, to mark the eastern end of the line between the 
river and the sea. 

Scarborough may have known that he was not on the 
true line, but if so, he kept his knowledge to himself. It 
is very certain that Calvert had full faith in the correctness 
of his work. No doubt he lived and died in the belief 
that the marks he assisted to make were on a due east line 
from the westermost angle of Watkins Point, properly sa 
called. If any one thinks this a blunder too gross to be 
credited let him remember by whom it was shared. Herr- 
mafhn and all subsequent map-makers place the marks on 
the straight line where Calvert thought it was. All the 
public men of the colonies had the same opinion. The 
error was not discovered, nor even suspected, for more 
than a hundred years. 

But it is urged that the call of the charter is for a 
straight line; that commissioners were appointed to ascer- 
tain where it ran; that they did ascertain it, and marked a 
part of it ; that their judgment being conclusive the whole 
line is established as certainly as if it had been marked. So 
far as this is a geometrical proposition it is undoubtedly 
true; but mathematics cannot determine this case against 
law and equity. 

Their own description of the line they agreed upon is 
inconsistent with itself. They call it an east line from 
Watkins Point, and give it an outcome by a course corre- 
sponding with Holston's tree. If this be a straight line,, 
how shall we find it? If we begin at Watkins Point and 



23 



ruu east to the sea we go far below the marked line ; if 
we begin at the marks and run west to the bay we reach 
the Annamessex, which is equally wide of the fixed ter- 
minus at that end. Yet by one way as much as by the 
other we follow the agreed Hue of the commissioners. 
We reconcile these contradictions, and carry out the whole 
agreement, if we run the east line from Watkins Point 
until it begins to conflict with the marked line, and from 
there to the ocean let the marked line be taken for the 
exclusively true one. 

Plainly, it never was intended by the commissioners or 
anybody else that the territory west of the Pocomoke 
should be divided by a line extending westward from Hol- 
ston's to the mouth of the Annamessex. If that was the 
technical effect of the agreement it was instantly repudi- 
ated by the common consent of both provinces. Maryland 
had held before and continued afterwards to hold and 
possess all the territory between the Pocomoke and the bay 
down to the latitude of Watkins Point, granting the lands, 
taxing them in the hands of her grantees, and ruling all 
the inhabitants according to her laws and customs. Her 
jurisdiction was not intermitted nor any of her rights sus- 
pended for a moment. Virginia never expressed a suspi- 
cion that this possession of Maryland was inconsistent with 
any right of hers under the agreement. Scarborough him- 
self acquiesced in it to the day of his death as a true con- 
struction of his covenants with Calvert. 

Our conclusion is that Virginia, by the agreement and 
her undisturbed occupancy, has an undoubted title to the 
land east of the Pocomoke as far north as the Scarborough 
and Calvert line, while Maryland, by the charter and by 
her continued possession under it, has a perfect right to 
the territory west of the Pocomoke and north of Watkins 
Point. 

We must now go back to Smith's Island. That island 
is clearly north of the charter line, and all the rights which 
Virginia had there must depend on the proofs which she is 
able to give of her possession. The commissioners, agents, 



24 



and counsel on both sides have, with infinite labor, col- 
lected a great volume of evidence on this part of the case, 
and discussed it at much length. 

In early times Virginia granted lands high up on the 
island ; and Maryland, without expressly denying the right 
of Virginia, made grants of her own in the same region. 
The lines of these grants are so imperfectly denned by the 
surveys that it is not at all easy to tell where they are, and 
some of them are believed to lie afoul of others. The oc- 
cupancj^, like the titles, was mixed and doubtful. The 
inhabitants did not know which province they belonged 
to ; at least that was a subject on which there were divers 
opinions. 

A line running nearly across the middle of the island 
was at first claimed by Virginia as being the old boundary ; 
but a subsequent personal examination and a more careful 
reconsideration of the evidence brought the counsel them- 
selves to the opinion that a claim by that line could not be 
supported. They insisted, however, and do still insist, 
that another line, which runs about three quarters of a 
mile above that from Sassafras Hammock to Horse Ham- 
mock, was and is the true division. There is some evidence 
that this was once thought to be the boundary. 

Two grants, one by Maryland and one by Virginia, each 
calling for the divisional line between the States, without 
describing where the divisional line was, were so located 
on the ground that they met on the line in question. It 
is inferred from this that a line had been previously run 
at that place, which was understood to be the division be- 
tween the provinces or the States. But this argument a 
priori is all that supports the theory of a State line there. 
If it ever was actually run it cannot now be told by whom, 
when, for what purpose, by what authority, or precisely 
where. All the evidence relating to it is very doubtful. 
It dates dack to what may be called the prehistoric times 
of the island. Some witnesses affirm and others deny, on 
the authority of their forefathers, that this was the divid- 



25 



ing line of the States; but none of them can give any 
substantial grounds for his belief. 

Out of this contradictory evidence and above the ob- 
scurity of vague tradition there rises one clear and decisive 
fact, which is this : that for at least forty years last past 
Maryland has acknowledged the right of Virginia up to a 
line which, beginning at Sassafras Hammock, runs east- 
ward across the island to Horse Hammock, and Virginia 
has claimed no higher. By that line alone both States 
have limited their occupancj^ for a time twice as long as 
the law requires to make title by prescription. By that 
line Maryland has bounded her election district and her 
county. North of it all the people vote and pay taxes in 
Maryland, obey her magistrates, and submit to the pro- 
cess of her courts. South of it lies, undisturbed and un- 
disputed, the old dominion of Virginia. We have no doubt 
whatever that we are bound to regard that as being now 
the true boundary between the two States. There are not 
two adjoining farms in all the country whose limits are 
better settled by an occupancy of forty years, or whose 
owners have more carefully abstained from all intrusion 
upon one another within that time. 

We have thus ascertained to our entire satisfaction the 
extent and situation of the territory which each State has 
held long enough to make a title by prescription, and the 
boundary now to be determined must conform to those 
possessions, no matter at what expense of change in the 
original lines. We know, therefore, how the land is to be 
divided. But how does prescriptive title to land affect the 
right of the parties in the adjacent waters ? 

It has been argued with great force and ingenuity that 
a title resulting merely from long possession can apply only 
to the ground which the claimant has had under his feet, 
together with its proper appurtenances; that a river, a 
lake, or a bay is land covered with water; that land can- 
not be appurtenant to land ; that therefore title by pre- 
scription stops at the shore. But this is unsound, because 
the water in such a case is not claimed as appurtenant to 



26 



the dry land, but as part of it. One who owns land to a 
river owns to the middle of the channel. Upon the same 
principle, if one State has the territory on both sides the 
whole river belongs to her. Nor does it make any differ- 
ence how large or how small the body of water is. The 
Romans called the Mediterranean Mare Nostrum, because 
her territory surrounded it on all sides. This construction 
applies with equal certainty to every kind of title, whether 
it be acquired by express concession, by lawful conquest, or 
by the long continuance of a possession which at first may 
have been but a naked trespass. In the last case the silent 
dereliction of the previous proprietor implies a grant of his 
whole right as fully as if it had been given by solemn 
treaty. 

A few observations upon the several sections of the 
broken line which we adopt in place of the straight line of 
the charter will suffice to apply the principles we have en- 
deavored to set forth. 

We run to Sassafras Hammock and from that to Horse 
Hammock, because we cannot in any other possible way 
give Virginia the part of Smith's Island to which she shows 
her right by long possession. 

We go thence to the middle of Tangier sound and from 
thence downward we divide Tangier sound equally be- 
tween the two States, because the possession of Virginia 
to the shore is proof of a title whose proper boundary is 
the middle of the water. We give Maryland the other 
half of the sound for the same or exactly a similar reason, 
she being incontestably the owner of the dry land on the 
opposite shore. 

The south line dividing the waters stops where it inter- 
sects the straight line from Smith's Point to Watkins 
Point, because this latter is the charter line, as modified by 
the compact, and Maryland has no rights south of it. 

From that point of intersection to Watkins Point we 
follow the straight line from Smith's Point, there being 
no possession or agreement which has changed it since 
1785. 



27 



At Watkins Point the charter line has stood unchanged 
since 1632, and a call for a due east line from thence must 
be followed until it meets the middle thread of the Poco- 
moke. At the place last mentioned the boundary turns up 
the Pocomoke, keeping the middle of the river until it 
crosses the Calvert and Scarborough line. It divides the 
river that far because the territory on one side belongs to 
Maryland and on the other to Virginia. 

From the angle formed by the Scarborough and Calvert 
line with the line last described through the middle of the 
Pocomoke the boundary follows the marked line of Scar- 
borough and Calvert to the seashore. 

It will be readily perceived that we have no faith in any 
straight-line theory which conflicts with the contracts of 
the parties or gives to one what the other has peaceably 
and continuously occupied for a very long time. The 
broken line which we have adopted is vindicated by cer- 
tain principles so simple, so plain, and so just, that we are 
compelled to adopt them. They are, briefly, as follows : 

1. So far as the original charter boundary has been uni- 
formly observed and the occupancy of both has conformed 
thereto it must be recognized as the boundary still. 

2. Wherever one State has gone over the charter line 
taking territory which originally belonged to the other and 
kept it, without let or hindrance, for more than twenty 
years, the boundary must now be so run as to include such 
territory within the State that has it. 

3. Where any compact or agreement has changed the 
charter line at a particular place, so as to make a new 
division of the territory, such agreement is binding if it 
has been followed by a corresponding occupancy. 

4. But no agreement to transfer territory or change 
boundaries can count for anything now if the actual pos- 
session was never changed. Continued occupancy of the 
granting State for centuries is conclusive proof that the 
agreement was extinguished and the parties remitted to 
their original rights. 

5. The waters are divided by the charter line where that 



28 



line has been undisturbed by the subsequent acts of the 
parties; but where acquisitions have been made by one 
from the other of territory bounded by bays and rivers 
such acquisitions extend constructively to the middle of the 
water. 

Maryland is by this award confined everywhere within 
the original limits of her charter. She is allowed to go to 
it nowhere except on the short line running east from 
Watkins Point to the middle of the Pocomoke. At that 
place Virginia never crossed the charter to make a claim. 
What territory we adjudge to Virginia north of the char- 
ter line she has acquired either by compacts fairly made 
or else by a long and undisturbed possession. Her right 
to this territory, so acquired, is as good as if the original 
charter had never cut it off to Lord Baltimore. We have 
nowhere given to one of these States anything which fairly 
or legally belongs to the other ; but in dividing the land 
and the waters we have anxiously observed the Koman 
rule, suum cuique tribuere. 

J. S. Black, 

Pennsylvania. 

Chas. J. Jenkins, 
Georgia. 

A. W. Graham, 

Secretary. 



AWARD. 



And now, to wit, January 16, Anno Domini 1877, the 
undersigned, being a majority of the arbitrators to whom 
the States of Virginia and Maryland, by acts of their re- 
spective Legislatures, submitted the controversies concern- 
ing their territorial limits, with authority to ascertain and 
determine the true line of boundary between them, having 
heard the allegations of the said States and examined the 
proofs on both sides, do find, declare, award, ascertain, 
and determine that the true line of boundary between the 
said States, so far as they are conterminous with one an- 
other, is as follows, to wit : 

Beginning at the point on the Potomac river where the 
line between Virginia and West Virginia strikes the said 
river at low-water mark, and thence, following the mean- 
derings of said river by the low-water mark, to Smith's 
Point, at or near the mouth of the Potomac, in latitude 37° 
53' 08" and longitude 76° 13' 46"; thence crossing the 
waters of the Chesapeake bay, by a line running north 
65° 30' east, about nine and a half nautical miles, to a 
point on the western shore of Smith's Island, at the north 
end of Sassafras Hammock, in latitude 37° 57' 13", longi- 
tude 76° 02' 52"; thence across Smith's Island south 88° 
30' east five thousand six hundred and twenty yards, to 
the center of Horse Hammock, on the eastern shore of 
Smith's Island, in latitude 37° 57' 08", longitude 75° 59' 
20"; thence south 79° 30' east four thousand eight hun- 
dred and eighty yards, to a point marked "A" on the 
accompanying map, in the middle of Tangier sound, in 
latitude 37° 56' 42", longitude 75° 56' 23", said point bear- 
ing from Jane's Island light south 54° west, and distant 
from that light three thousand five hundred and sixty 



30 



yards; thence south 10° 30' west four thousand seven 
hundred and forty yards, by a line dividing the waters of 
Tangier sound, to a point where it intersects the straight 
line from Smith's Point so Watkins Point, said point of 
intersection being in latitude 37° 54' 21", longitude 75° 
56' 55", bearing from Jane's Island light south 29° west, 
and from Horse Hammock south 34° 30' east. This point 
of intersection is marked "_£?" on the accompanying map. 
Thence north 85° 15' east six thousand seven hundred and 
twenty yards along the line abovementioned, which runs 
from Smith's Point to Watkins Point until it reaches the 
latter spot, namely, Watkins Point, which is in latitude 
37° 54' 38", longitude 75° 52' 44". From Watkins Point 
the boundary line runs due east seven thousand eight hun- 
dred and eighty yards, to a point where it meets a line 
running through the middle of Pocomoke sound, which 
is marked " (7" on the accompanying map, and is in lati- 
tude 37° 54' 38", longitude 75° 47' 50"; thence, by a line 
dividing the waters of Pocomoke sound, north 47° 30' 
east five thousand two hundred and twenty yards, to a 
point in said sound marked "Z>" on the accompanying 
map, in latitude 37° 56' 25", longitude 75° 45' 26" ; thence 
following the middle of the Pocomoke river by a line of 
irregular curves, as laid down on the accompanying map, 
until it intersects the westward protraction of the boundary 
line marked by Scarborough and Calvert May 28, 1668, 
at a point in the middle of the Pocomoke river and in lati- 
tude 37° 59' 37", longitude 75° 37' 04"; thence, by the 
Scarborough and Calvert line, which runs 5° 15' north of 
east, to the Atlantic ocean. 

The latitudes, longitudes, courses, and distances here 
given have been measured upon the Coast Chart No. 33 of 
the United States Coast Survey, (sheet No. 3, Chesapeake 
Bay,) which is herewith filed as part of this award and 
explanatory thereof. The original charter line is marked 
upon the said map and shaded in blue. The present line 
of boundary, as ascertained and determined, is also marked 
and shaded in red, while the yellow indicates the line re- 



31 



ferred to in the compact of 1785 between Smith's Point 
and Watkins Point. 

In further explanation of this award, the arbitrators 
deem it proper to add that — 

1. The measurements being taken and places fixed ac- 
cording to the Coast Survey, we have come as near to 
perfect mathematical accuracy as in the nature of things 
is possible. But in case of any inaccuracy in the described 
course or length of a line or in the latitude or longitude of 
a place the natural objects called for must govern. 

2. The middle thread of Pocomoke river is equidistant 
as nearly as may be between the two shores without con- 
sidering arms, inlets, creeks, or affluents as parts of the 
river, but measuring the shore lines from headland to 
headland. 

3. The low-water mark on the Potomac, to which Vir- 
ginia has a right in the soil, is to be measured by the same 
rule, that is to say, from low-water mark at one headland 
to low-water mark at another, without followiug indenta- 
tions, bays, creeks, inlets, or affluent rivers. 

4. Virginia is entitled not only to full dominion over 
the soil to low-water mark on the south shore of the Po- 
tomac, but has a right to such use of the river beyond the 
line of low-water mark as may be necessary to the full 
enjoyment of her riparian ownership, without impeding 
the navigation or otherwise interfering with the proper 
use of it by Maryland, agreeably to the compact of 1785. 

In testimony whereof we have hereunto set our hands 
the day and year above written. 

J. S. Black, 

A. W. Graham, Of Pennsylvania. 

Secretary. Chas. J. Jenkins, 

Of Georgia. 



f 



OPINION OF JAMES B. BECK, OF KENTUCKY. 



I agree with my colleagues in the conclusion they have 
reached as to the rights of Maryland on the Potomac 
river. But I regret to be compelled to differ with them 
as to the location of the " Watkins Point" of Lord Bal- 
timore's charter, and consequently as to the true line of 
division between the States on the eastern shore of the 
Chesapeake bay. I am satisfied, from all the facts and 
circumstances before us, that the promontory at the ex- 
treme western angle of the body of land called by Calvert 
and Scarborough Watkins Point, in 1668, from which or 
" agreeable " to which they ran their divisional line east 
straight to the ocean, is the true Watkins Point of the 
charter, aud consequently the line of Calvert and Scarbor- 
ough is the true line from the bay to the sea. 

My colleagues have decided that the true " Watkins 
Point" is at Cedar straits, which is a low, marshy cape or 
angle of the Chesapeake, on the northwestern side of Poco- 
moke bay, from which the charter line of Lord Baltimore 
ran east to the ocean, but that, owing to the action of the 
commissioners in 1668, the present true line now runs 
thence east to the middle of Pocomoke bay; thence fol- 
lowing the middle of the bay to the mouth of Pocomoke 
river; thence up the middle of the river till it reaches the 
line of Calvert and Scarborough, four or five miles north 
of their Watkins Point; thence with that line east to the 
ocean. Being unable to see how this crooked line can be 
reconciled or made to agree either with Lord Baltimore's 
charter or Calvert and Scarborough's settlement of the 
boundary in 1668, I am compelled to disagree with them, 
and propose to give my reasons for declining to sign the 
award. 

3 



34 

The length of time which has elapsed, and the loss of 
records which would have explained many of the transac- 
tions, render it difficult to speak with accuracy as to ac- 
tions and events so remote. Much has to be inferred from 
the necessary or probable connection of isolated facts, 
whilst the impossibility of obtaining evidence outside of 
the documents laid before this commission by the dis- 
tinguished counsel for the States to test the truth of the 
deductions and conclusions arrived at makes an elaborate, 
and it may be somewhat tedious, statement of the case 
necessary to a proper understanding of it. 

I shall not attempt to give my views a judicial appear- 
ance, but rather set forth the reasons and arguments which 
have impelled me to the conclusion I have reached. 

By reference to the acts of the Legislatures of Maryland 
and Virginia appointing this commission, it will be seen 
that we are directed to determine the true line of boundary 
between the States; and as the line across the eastern 
shore from the Chesapeake to the ocean is the opening 
line of Lord Baltimore's charter under which Maryland 
claims, it must first be settled, as the closing line from the 
mouth of the Potomac to the initial point cannot be de- 
termined until the beginning point is ascertained. That 
done, the closing line being " the shortest line" from the 
west side of the bay to the beginning, only requires the 
drawing of a straight line to the initial point to answer the 
call of the charter, in which the first or controlling line is 
thus described : "All that part of the peninsula or cher- 
sonese lying in parts of America between the ocean on the 
east and the bay of Chesapeake on the west, divided from 
the residue thereof by a right line drawn from the 'promon- 
tory or headland called Watkins Point, situate upon the 
bay aforesaid, near the river Wighco on the west, unto 
the main ocean on the east." The location on the right 
line called for in the foregoing recital is the main point in 
dispute, especially the mathematical point which shall be 
determined to be the Watkins Point, from which the sur- 
veyor should start the right line from the Chesapeake to 



35 



the ocean. In reference to "Watkins Point" several 
things must be observed : First. It is described in the 
opening line as a promontory or headland, and in the 
closing line thus: "Thence by the shortest line unto the 
said promontor}^ or place called 1 Watkins Point.' " In 
Webster's Unabridged Dictionary a "promontory" is thus 
described: "From pro, before, and mons, mountain. 
(Geog.) A high point of land or rock projecting unto the 
sea beyond the line of the coast; a headland. It dif- 
fers from a cape in denoting high land. A cape may be a 
similar projection of land, high or low. 'Like one who 
stands upon a promontory.' " (Shak.) Second. It is situated 
on Chesapeake bay. Third. It was near (not upon or 
necessarily connected with) the river Wighco. Fourth. 
The line to be run from Watkins Point on Chesapeake bay 
was to be a "right" or straight line "from that initial 
to the ocean on the east." 

When the charter for Maryland was granted by Charles 
I to Cecelius, Lord Baltimore, in 1632, there was no map 
of the country in existence, except that made by Captain 
John Smith to accompany the history of his explorations / 
and adventures in America, and no means existed of de- 
termining the location and character of the place called by 
him "'Watkins Point," except the description given of it 
in his history. The name " Watkins Point" is written 
on the land in Smith's map in such a manner that no per- 
son can say, by looking at it with the certainty that ought 
to be required in settling a question of boundary between 
colonies or States, what spot is intended to be indicated as 
the mathematical point from which a line of survey should 
be run. The history which the map was drawn to illus- 
trate makes it conclusive that the marshy angle at Cedar 
straits could not be the "Watkins Point" named by Cap- 
tain Smith, the only description of which is given by him 
in volume 1, page 183, as follows : 

" Watkins', Read's, and Momford's poynts are on each 
side Limbo, Ward, Cantrell, and Sicklemore's, betwixt 
Patawomack and Pamunkee, after the names of the discov- 



36 



erers. In all these places and the furthest we came up 
the rivers we cut in trees so many crosses as we would, and 
in many places made holes in trees, wherein we writ notes, 
and in some places crosses of hrasse, to signifie to any, 
Englishmen had been there." 

It is agreed that Smith gave the name of Ci Limbo " to 
the straits known as u Hooper's straits," about twenty 
miles north of Cedar straits ; and the proof is conclusive 
that the angle at Cedar straits is, and always was, a low, 
marshy point on which no trees ever grow, and which has 
none of the elements of a promontory. The southernmost 
angle of it lies south of and is hidded from the view of 
navigators on the Chesapeake bay by the northern point 
of Fox Island, which is, and always has been, a part of 
Accomac county, in Virginia. Fox Island lies near to and 
west-southwest of the southern point of the main shore at 
Cedar straits, and was granted by Virginia in 1678, Watts 
Island, south of it, having been granted in 1673. They 
were both islands then ; and there being no evidence to 
show that they were not both islands in 1608 and 1632, the 
presumption is that they were. A straight line cannot 
now be drawu, and I assume never could have been drawn, 
from the southern extremity of the main shore at Cedar 
straits either to Cinquack or Smith's Point, on the west- 
ern side of the bay, without running across Fox Island. 
My colleagues have been compelled to run through it, as 
the line on their map shows, in order to reach their so- 
called Watkins Point. It would be hard to explain how 
Maryland became entitled to it. It is not contended that 
any land has been made at this point since the charter was 
granted ; and whatever washing away has taken place only 
renders the fact less certain now than it was two centuries 
ago. The facts will appear by an examination of any map 
of the United States Coast Survey, and such examination 
will show that the southern point of the mainlaind at 
Cedar straits never was in any sense & promontory or head- 
land on the Chesapeake bay. 

The Maryland commissioners in their statement to this 



37 



commission, pages 46 and 47, give such a description of 
the character of the coast on each side of Cedar straits as 
show that the point now determined to be Watkins Point 
by my colleagues was not believed by them to be the Wat- 
kins Point of the charter. 

If it was not so originally, no changes in the character 
of the coast since can make it so now. John Smith 
named it long before any charter was thought of. 

The commissioners say : 

" The mouth of the Wichcocomoco or Pocomoke was 
then as it is now south of what is known as Watts Island, 
thence going north you pass Tangier Island, thence (in- 
cluding Fishbone and Heme Islands) extending as far 
north as Fox Island is now. From the mouth of the Po- 
comoke to Point Ployer, at that time, (1608,) the coast was 
low broken isles of marsh, and from Cedar straits to Jane's 
Island such is now the character of the coast. There may 
then have been, (in 1608,) and for thirty years there- 
after, an unbroken neck of land, as we have supposed, 
flanked on the east and west by low, broken islands of 
marsh, which have long since been washed away, and 
some of them have been submerged within the memory 
of living witnesses. * * * The isles they called Limbo 
were evidently those now known as Smith's Islands and 
Holland Islands. And the only point of high land upon 
the main from Pussels (Tangier) isles to Nanticoke river 
was that since known as Jane's Island, which must have 
been the Point Ployer of Smith's History." 

The point at Cedar straits never was called " Watkins 
Point" in any patent or conveyance; it remained vacant 
land till 1702, when it was granted by Lord Baltimore by 
the name of " Planes harbor " to Isaac and Nathan Horsey. 
The grant contained 407 acres ; its bounds calls for 44 Cedar 
straits," but nowhere suggests that "Watkins Point" is 
in the grant. In 1748 Isaac Horsey conveyed it, and 
again gives its bounds with " Cedar straits " among the 
calls ; no mention being made of " Watkins Point." No 
line ever was run from Cedar straits east to the ocean. 
The majority of the board do not now propose to run a 
line from their "Watkins Point" east according to the 



38 



calls of Lord Baltimore's charter, which they admit calls 
for a straight line from the Chesapeake bay to the At- 
lantic. They are obliged to meander along the Pocomoke 
bay and river more than four miles north of an east line 
from Cedar straits to the line established in 1668 by Cal- 
vert and Scarburg, and follow that line from the Pocomoke 
river east to the ocean, and to admit, first, that their line is 
not the true charter line, and second, to claim that the Calvert 
and Scarburg line of 1668 is not the true charter line, though 
they adopt it in order to sustain their theory that the point 
at Cedar straits is the " Watkins Point " of Lord Balti- 
more's charter. I assert that no man could take Smith's 
History and map, with the description of the country for 
fifteen miles north and south of Cedar straits, as given in 
the Maryland statement of this case, and locate the " Wat- 
kins Point " of Lord Baltimore's cbarter at Cedar straits, 
even if no line had been run by Calvert aud Scarburg; 
and when in addition to this it is shown that, more than 
two hundred years ago, commissioners appointed by the 
highest authority in Maryland and Virginia did in fact run 
a divisional line between the colonies straight from the 
Chesapeake bay to the ocean on what was then decided 
and settled to be the charter line, which strikes the Ches- 
apeake about four miles north of Cedar straits at a point 
which has all the requirements of the " Watkins Point" 
of Smith's History and map, it seems to me that the as- 
sumption that Cedar straits is the true " Watkins Point " 
cannot be maintained, conceding the possession by Mary- 
land of the point of land south of the true charter line, 
which is explaiued on grounds easily understood, without 
doing violence to the well-settled facts in the case. In 
order to present my views clearly I will be compelled to 
give a somewhat detailed statement of the causes which 
led to the Calvert and Scarburg survey and agreement; 
an explanation of its true meaning, and the protraction of 
its Hue west over Smith's Island, and east to the sea. 

The true divisional linebetween Maryland and Virginia, 
from the Chesapeake Bay to the ocean, became the sub- 



39 



ject of serious controversy between the colonies at a very 
^arly period, yet no line was established and no settlement 
of the controversy had until 1668. From 1632, when the 
charter for Maryland was granted by Charles I to Cecilius, 
Lord. Baltimore, up to the settlement of the line by Philip 
Calvert, the Chancellor of Maryland, and Edmond Scar- 
burg, the Surveyor General of Virginia, 1668, all sorts 
of extravagant claims were asserted on both sides — Lord 
Baltimore claiming down to Onancock, which is many 
miles south of what he had assumed to be his charter line 
in the map published by him in 1635 to accompany his 
u Relation of Maryland;" and Virginia, by the act of her 
Orand Assembly of September 10, 1663, claiming up to 
Nanticoke or Nanokin, many miles north of the "River 
Wighco " on Smith's map. I repeat that there was no map 
of that country in existence when Lord Baltimore's charter 
was granted, except Captain John Smith's, and his history 
furnished the only information which we have any right 
to assume either the King or Lord Baltimore had when 
the grant was made; neither of them ever were in Amer- 
ica. The map accompanying Lord Baltimore's Relation 
of Maryland in 1635 was, of course, his advertisement of 
his claim, made up and published in London to induce 
people to emigrate there, and certainly included all he 
thought he could possibly embrace within the limits of his 
charter. Until a line was run from the ocean to Watkins 
Point, or from Watkins Point to the ocean, which is the 
same thing, it was perhaps natural that Lord Baltimore 
•should seek to extend his limits as far south as possible, 
as he obviously did on his map by changing the whole 
character and shape of the land at Watkins Point as laid 
down on Smith's map, of which he professed his was a 
copy, extending the southern point far into the bay be- 
yond what Smith had done, and from that southern point, 
so made arbitrarily, he extended his " charter line " by a 
dotted line straight east to the ocean. If he had been 
•entirely impartial between himself and the King he would 
'Jaave made a true copy of that part of Smith's map at 



40 



least, and if he claimed from the southern angle of the- 
point instead of the westernmost, would have dotted his 
southern line thence east to the sea, as Smith's map 
located it, instead of creating an artificial point or tongue 
of land as he did, so as to claim across the whole eastern 
shore all the land for many miles south of what a line 
projected from the southern point on Smith's map would 
have given him. The King, after closing the grant to 
him, had taken the precaution to say in the charter that it 
was laid off " so that the whole tract of land divided by 
the line aforesaid between the main ocean and Watkins 
Point, unto the promontory called Cape Charles, may en- 
tirely remain forever excepted to us, our heirs and suc- 
cessors forever." It must therefore have been obvious to 
Lord Baltimore that he was attempting to take from the 
King a large amount of property not granted to him when 
he so drew his map as to extend his southern boundary 
from the Chesapeake east to the ocean from a point far 
south of that laid down on Smith's map, from which he 
professed to have copied his own. 

Again, and I am only showing now that each side, prior 
to the running of the divisional line in 1668 by Calvert 
and Scarburg as an adjustment of all disputes from the 
Chesapeake bay to the ocean, set up extravagant and un- 
founded claims. Lord Baltimore obtained from Sir John 
Harvey, (whose history is too well known to require further 
comment than that he was hated and despised by the 
people, whom he as cordially disliked,) after the banish- 
ment and return of that Governor, a proclamation, dated 
October 4, 1638, forbidding all citizens of Virginia from 
trading " with the Indians or savages inhabiting within 
said Province of Maryland, viz.: northward from the river 
Wiconowe, commonly called by the name of Onancock,. 
on the eastern side of the grand bay of Chesapeake," * * 
" without license first obtained for their so doing from the 
Lord Baltimore, or his substitute," &c. 

Onancock, as Sir John Harvey, and certainly as Lord 
Baltimore knew, being from ten to fifteen miles south of 



41 



what Maryland now claims to be the "Watkins Point " 
of the charter, and from eight to ten miles south of the 
dotted line which Lord Baltimore had drawn east to the 
ocean from the " Watkins Point," laid down by him on 
the map of 1685, accompanying his ''Relation of Mary- 
land." Several streams of considerable magnitude, such 
as Chesconessex and Hunter's creek, were between Onan- 
cock and the Wighco (or Pocomoke,) on the eastern shore, 
to that there could be no doubt that Onancock was far 
south of any possible charter Line; yet, with that knowl 
edge, Lord Baltimore, in a letter of instructions to his 
Governor and Council, dated October 23, 1656, among 
other things, ordered, "That they take special care that no 
encroachments be made by any, upon any part of his lord- 
ship's said provinces ; for the better prevention whereof, 
his lordship requires his said lieutenant and council to 
cause the bounds thereof to be kept in memory and notoriously 
known, especially the bounds between Maryland and Virginia, 
on that part of the country known there by the name of the 
Eastern Shore ; * * * and his lordship hath also, for 
their direction therein, sent herewith a copy of a procla- 
mation published heretofore by the then Governor and 
Council of Virginia, for prohibiting any of Virginia to 
trade with the Indians in Maryland without his lordship's 
license, which proclamation bore date 4th October, 1638, 
and therein are described the bounds between Maryland and Vir- 
ginia" This extreme claim of Lord Baltimore doubtless 
induced the Maryland commissioners, in their statement 
in 1872, to say that, "It may be fairly considered evidence 
that ' Watkins Point ' at that time extended so far south 
as to be west or nearly west of Onancock river, so that an 
east line from it to the ocean would pass along or near that 
river. * * * And the tradition is so fully proved that 
the mainland originally extended in one unbroken point 
to Watts Island, the southern end of which at that time 
was probably so nearly west of Onancock river as to con- 
firm the implication that 4 Watkins Point' was at the south- 
ern end of what has since become known as Watts Island." 



42 



So that neither Lord Baltimore in 1656, nor the Mary- 
land commissioners in 1872, claimed that the marshy 
point, which is the southern point of Somerset county, on 
the bay, is the true " Watkius Point" of the charter to 
Lord Baltimore. Surely " Watkins Point" could not be at 
one place at one time and at a different place at another. 
Whatever was originally the true charter point is so now. 
Our duty is to find it. All the best informed parties as- 
sumed that it was not at Cedar straits. 

I agree with them, that it is not. As already stated, that 
point has none of the elements of a 'promontory or headland, 
and was not regarded by Calvert and Scarburg as an- 
swering Captain John Smith's description of "Watkins 
Point." But before considering that, I propose to show 
that Virginia, prior to 1668, was as extreme and more dic- 
tatorial than Lord Baltimore in the assertion of her claim 
to a line of division between herself and Maryland many 
miles north of the line finally agreed on by Calvert and 
Scarburg. It is unnecessary to refer to her conduct prior 
to 1663, as her action then illustrates fully what I mean. 
On the 10th day of September, 1663, her grand assembly 
passed an act " Commanding in his majesties name all the 
inhabitants of the eastern shore of Ya., from 4 Watkins 
Point,' southward, to render obedience to his majestie's 
Government of Ya., and make payment of his majesties 
rents, and all public dues to his majesties colony of Ya. 
And whereas, it has been controverted by some ignorant 
or ill-disposed persons, where 4 Watkins Point,' the Lord 
Baltimore southernmost bounds on the eastern shore is 
situate, this Grand Assembly by the care and special in- 
quiry of five able selected Surveyors and two Burgesses, 
and the due examination thereof, conclude the same place 
of Watkins Point to be the north side of Wicocommico 
river, on the eastern shore, and near unto and on the 
south side of the Straight Lymbo, opposite the Patuxent 
river, which place, according to Capt. John Smith, and 
discoverers with him in the year 1608, was so named, 
being the Lord Baltimore's bounds on the eastern shore, 



43 



-within which bounds his majesties subjects that are now 
seated are hereby commanded to yield due obedience at 
their perils." 

Col. Edmund Scarburg and two others were appointed 
to confer with the Maryland authorities, and in the mean- 
time " all inhabitants on the eastern shore as aforesaid, 
are required in his majesties name to conform due obedi- 
ence to this act of Assembly." 

Acting or assuming to act under the orders so given by 
the Grand Assembly of Virginia, Col. Scarburg, in Octo- 
ber, 1663, taking with him forty horsemen "for pomp and 
safety" w r ent to Annamesseks and Manoaken, and pro- 
ceeded in the most arbitrary manner to take possession of 
the country up to Manoakin, and to require all the inhabit- 
ants to " subscribe obedience " to His Majesty according 
to the Virginia act of Assembly ; setting the u broad ar- 
row/' the mark of confiscation, on the doors of all who 
refused or asserted any right in Lord Baltimore to any 
jurisdiction south of the place claimed by Virginia in this 
act to be Lord Baltimore's southern boundary. 

In his report to the Governor and Council of Virginia 
what he had done, he gives his conversations with some of 
Lord Baltimore's officers and staunchest adherents, and 
adds : " Some of them also discussed of the Lord Lieuten- 
ant of Maryland's claim to Manoakin and all the other 
places to Onancock, to w T hich it was answered that whilst 
the erroneous Proclamation was uncontroled that declares 
Onancock to be Maryland's southern bounds, it might be 
so received. But since occasion made the government of 
Virginia not only reverse that proclamation, but also by 
the present act of Assembly, the certain bounds of the 
Lord Baltimore's patent was declared, &c, that if the 
Lord Lieut, had aught to say he w^as referred by the 
act to persons and place; therefore they need not trouble 
themselves therein, for the question appertained to higher 
powers and above private men's controverting." In order 
to sustain the claim of Virginia, the court of Accomac 
county, seven justices of the peace present, on the 10th 



44 



day of November, 1663, after a long preamble setting 
forth the disobedience of certain rebellious Quakers and 
other factious people about Manoakin, who refused to 
conform to the act of Assembly of Virginia, ordered cer- 
tain officers to call together His Majesty's good subjects 
from Manoakin to Pocomoke river to arm themselves, 
and, if necessary, protect the people and suppress any dis- 
turbances that these Quakers or others may seek to raise 
because of said act. 

On the 19th of July, 1664, Edmund Scarborough and 
seven other apparently respectable gentlemen appeared 
before the court of' Acoomac and made oath that the Po- 
comoke river had been known by that name " time out of 
mind," " being a river on the eastern shore of the Chesa- 
peake bay in Virginia, lying to the southward of a small 
spiral point on the south side of Annemessecks, and that 
point is to the southward of the place described in Capt. 
John Smith's map for Watkins Point, so far as a man can 
see in a clear day." It is evident that the " small spiral 
point" referred to in that affidavit is the kt Watkins Point " 
of the Calvert and Scarborough line, the " extreme west- 
ern angle " of the body of land on which they afterward 
determined the initial point of the opening line of the 
charter on the Chesapeake to be, the point Dr. Russell 
says they called Point Ployer in all probability, but to 
which, in my opinion, Smith in his history and map. gives 
the name of Watkins Point, there being no " Point Ployer" 
anywhere laid down by him ; and it was from his history 
and map that both Virginia and Maryland were asserting 
their rights. That spiral or triangular point was about 
fifteen miles south of the first high land on the main shore 
north of it, which was the point at JSTanticoke, nearly oppo- 
posite Patuxent river, which Virginia was asserting with 
such pertinacity to be the Watkins Point of Lord Balti- 
more's charter and the northern limits of Accomac county, 
being about as u far as a man can see in a clear day." It 
was the only point on the coast north of Onancock or 
south of E~anticoke, which gave Virginia any trouble in 



45 



maintaining her extreme claim. Lord Baltimore's claim 
to Onancock was too extreme to be dangerous ; but she 
had to fortify herself against Maryland's withdrawal from 
Onancock and asserting her right east from the point 
which the makers of the affidavit spoke of as " a small 
spiral point." Doubtless the affidavit was made to fortify 
Virginia in the negotiation then in progress against Mary- 
laud, demanding that point as the true Watkins Point of 
her charter; for it will be observed that it was made after 
Gov. Calvert's visit to Sir William Berkeley and after 
Philip Calvert was empowered to treat with the Governor 
and Council of Virginia; they had no apprehension that 
the marshy angle at Cedar straits would ever give them 
.any trouble. 

Enough has thus been shown to exhibit the extreme 
claims of each and the danger to be apprehended unless 
the question was settled in some amicable manner. Lord 
Baltimore protested at once against the arbitrary conduct 
of Scarborough, and demanded "Justice against the said 
Edmund Scarborough for entering into this province in a 
hostile manner in October last, and by blows and im- 
prisonment outraging the inhabitants of Manoakin and 
Annamessex." 

Governor Calvert in the early part of the year 1664 vis- 
ited Governor Berkley in person, as shown by his procla- 
mation, dated June 3, 1664, in which, after speaking of 
the outrages committed by Scarborough on his people, he 
says, "And whereupon remonstrance of this undue pro- 
ceeding to the Hon. Sir William Berkeley, by myself in per- 
son, he did not only disclaim any order from him to the 
said Scarburg alone, or before notice given and debate 
had touching the point in difference to proceed by force, 
as he did; but was pleased by his order of the 28th of 
March last to order the said Scarburg, with one or both 
surveyors, &c, * * * to give a meeting to such com'rs 
as should by me be appointed," &c. After stating the fail- 
ure of these commissioners to meet, the Governor pro- 
ceeds: "And to show how we are not to be tired out of our 



46 



desires of fair correspondence with the Hon. Gov. $■ Council 
ofVa.,I have constituted, ordained, appointed, and em- 
powered Philip Calvert, Esq., deputy lieutenant and chan- 
cellor of this province, to repair to the Hon. Sir Wm. 
Berkley, Gov. of Va., and the council there, and after 
delivering of a duplicate of these presents and to treat 
and determine the said differences concerning ' Watkins 
Point.' * * * Whereof I desire that the said Philip 
Calvert may be credited and believed, promising to ratifjr 
and confirm whatsoever shall be done by him according 
to this my commission as if it were done by myself." 

It thus appears that the Governor of Maryland had a 
personal interview before March 28th, 1664, with the Gov- 
ernor of Virginia relative to the settlement of the true 
boundary line between the two provinces on the eastern 
shore, between the Chesapeake bay and the ocean, at which 
time it must be assumed that the claims of Lord Baltimore 
and those of Virginia were fully discussed. Smith's book 
and map ; Lord Baltimore's Relation and map; Sir John 
Hervey's Proclamation in 1633; Lord Baltimore's claim 
to Onancock in 1656, based upon it as well as the act of 
the Assembly of Virginia, of September 10th, 1663, and 
the facts upon which that action was based were all before 
them. The result was, as Governor Calvert stated in his 
proclamation of June 3, 1664, that Sir William Berkeley- 
"was pleased further by his order of the 28th of March last 
to order the said Scarburg with one or both the surveyors, 
&c, * * * to give a meeting to such commissioners as 
should by me be appointed at Manoakin 10th of May last/* 
That commission having failed Philip Calvert was ordered 
by the Governor to repair to Virginia in person and there 
treat with the Governor and Council of Virginia, and de- 
termine the " differences concerniuing Watkins Point.'* 
We must assume that he went and had a full discussion 
of all the questions at issue with the Governor and Council 
of Virginia. In the absence of records we cannot say how 
far he was successful, but the inference, is strong that before 
October, 1667, he had made an agreement with them sub- 



47 



stantially similar to that formally signed by himself and 
Edmund Scarborough on the 25th of June, 1668. A care- 
ful reading of that agreement (leaving out for the present 
the grant from Virginia for 1,000 acres on Smith's Island 
in October, 1667) seems to warrant the assumption that he 
had, and that Scarborough was sent by the Governor and 
Council to perfect it and run the boundary line, as it re- 
cites "by his majesty's commission " it was his right and 
duty, by the advice and order of Governor and Council, to 
do. I will speak of that hereafter. All the proceedings 
had and all the acts done prior to and including the ap- 
pointment of Philip Calvert in 1634 were based upon the 
extreme claims of the parties to the controversy. Neither 
had pretended to assert where the true mathematical point,, 
the Watkins Point of the charter, on which the surveyor 
should plant his staff or compass and start the divisional 
line from the Chesapeake bay to the ocean on the east, 
was. Until that exact point was settled and agreed upon 
no line could be run. They had confined themselves to 
general claims reaching to the neighborhood of certain 
places. Xo line was ever traced on any map of John Smith, 
the only one in existence when the charter was granted. 
He had described Watkins Point in his history only in 
the manner I have stated. It will be observed, also, that 
Smith's map lays down the Pocomoke bay as running 
almost due west from the month of the river, with a long, 
narrow tongue of land on the south side of it extending 
almost to the islands in the Chesapeake, dividing it from 
a large bay filled with islands on the south side of but dis- 
connected with it. However erroneous that map may be, 
and we now know it is very incorrect in regard to both 
the river and bay, their general direction being almost 
south, instead of west, as he lays them down, still it was 
the only guide which either the King or Lord Baltimore 
had when the charter was drawn, and it fixes the " Wat- 
kins Point" of the charter very near the point agreed on 
by Calvert and Scarburg, while it dissipates the claim of 
Lord Baltimore to run down to Onancock, shows the in- 



48 



correctness of his map published in 1635 with his Relation, 
and disproves the claim of Virginia, as asserted in- her act 
of 1663, to the line she sought to maintain twenty miles 
above at Nanticoke or Monoakin. The map was of course 
before Philip Calvert and the Governor and Council of 
Virginia while he was with them " to treat and determine the 
said differences concerning Watkins Point" and when it was 
fairly looked at by men negotiating in a just and amicable 
spirit it caused all the extreme pretensions on both sides 
to be abandoned. That furnishes the only rational inter- 
pretation of the language used in the preamble or first sec- 
tion of the final agreement of Calvert and Scarburg in 
1668 ; indeed of the whole agreement as signed by them. 
It was written by and for men familiar with all the ante- 
cedent negotiations, who knew just what point had been 
reached when they met, and were consummating agree- 
ments intended to give permanent peace and security to 
both colonies along the whole disputed line from the Chesa- 
peake bay to the ocean. That agreement is as follows : 

" Whereas his Eoyal Majesties Commission to the Sur- 
veyor Genl. of Virginia, commands setting out the bounds 
of Virginia, with a reference to his Majesty's Hon'ble Gov- 
ernor and Council of Virginia, from time to time to give 
advice and order, for directing the said Surveyor General 
to do his duty appertaining to his office. In order there- 
unto his Majesty's Hon'ble Governor and Couucil have by 
letter moved the Hon'ble the Lord Baltimore's Lieut. Genl. 
of Maryland to appoint some fitting person to meet upon 
the place called Watkins Point with the Surveyor Genl. of 
Virginia, and thence to run the division line to the ocean 
sea, &c, 

" The Hon'ble Philip Calvert, Esq., Chancellor of Mary- 
land, being fully empowered by the Hon'ble Lieut. Genl. 
of Maryland, andEdmond Scarborough, his Majesty's Sur- 
veyor Genl. of Va., after a full and perfect view taken of 
the point of land made by the north side ofPocomoke bay 
and the south side of Aunamesse* bay, have and do con- 
clude the same to be Watkins Pt., from which said point, 
so called, we have run an east line, agreeable with the ex- 
tremest part of the westernmost angle of said Watkins 
Point over Pocomoke river, to the land near Robt. Hoi- 



49 



ston's, and there have marked certain trees, which are so 
continued by an east line, running over Swansecute's 
creek, into the marsh of the seaside, with apparent marks 
and boundaries, which by our mutual agreement, accord- 
ing to the qualifications aforesaid, are to be received as the 
bounds of Virginia and Maryland on the Eastern Shore of 
Chesapeake Bay. 

" In confirmation of which concurrence we have set our 
hands and seals this 25th day of June, 1668. 

(Signed) Philip Calvert. [Seal.] 

Edmond Scarborough. [Seal.]" 

Viewed in the light of antecedent negotiations, I think 
the meaning of the foregoing agreement is that Philip Cal- 
vert and the Governor and Council of Virginia, after a full 
and free conference extending over several years, during 
which serious encroachments had been and still continued 
to be made by each of the colonies upon the other, deter- 
mined to abandon their extreme pretensions, Virginia no 
longer insisting upon carrying out the provisions of her 
act of assembly by claiming to run the divisional line from 
Manokin to the ocean, and Lord Baltimore abandoning all 
his claims to the line east from Onancock; and as John 
Smith's map, from the names and descriptions on which 
the King granted the charter to Lord Baltimore, has " Wat- 
kins Point" laid down on the point of laud formed by the 
north side of Pocomoke bay and the south side of Anna- 
messex bay, the Governor and Council of Virginia, by letter 
moved the Governor of Maryland to appoint some fitting 
person to meet upon the place called "Watkins Point " on 
Smith's map, with the surveyor general of Virginia, whose 
duty it was, " by his commission from the King," to lay 
out the bounds of Virginia under the direction, advice, and 
order of the Governor and Council, " and thence to run the 
line of division to the ocean sea." Philip Calvert was, in ac- 
cordance with the request contained in said "letter," sent 
by the Governor of Maryland to meet Scarborough, having 
been long before full empowered to settle the disputed 
question. They met on said land, took a full and perfect 
view of all of it, agreed that neither Manokin nor Onancock 
4 



50 



was the place on which the "Watkins Point" of the charter 
was situated, but that it was on the point of land formed 
by the north side of the Pocomoke bay and the southern 
side of Annamessex bay, and that the extremest part of 
the westernmost angle of it was the true mathematical 
point from which a line should be run by survey to the 
ocean on the east, and they ran it accordingly. It may be 
suggested that the fact that they viewed the whole point 
and decided the point of departure afterwards shows that 
they alone determined the whole question. The answer is 
that the respective governments could only give general 
directions from a distance. Much of detail had necessarily 
to be trusted to the judgment and discretion of their agents, 
as was doubtless done. 

Their line crossed the Pocomoke river to the land near 
Robert Holston's, and thence to the marsh by the seaside. 
They marked the line east of the Pocomoke for reasons 
made obvious by another agreement entered into be- 
tween them, or rather signed by them on the same day, 
for the protection of all grantees from Virginia for lands 
north of the boundary established by them, so that Lord 
Baltimore and persons holding lands granted by Virginia 
north of the line should have no difficulty in causing re- 
surveys to be made and patents from Lord Baltimore 
issued with that marked line as the southern boundary of 
the grants. Without a line so marked it would have been 
impossible either for Lord Baltimore or the claimants to 
have executed that agreement for the protection of Vir- 
ginia patentees ; but as Virginia had made no grants west 
of the Pocomoke nor on the'seven miles east of the Swan- 
secute marsh, no marks were made. Maryland's grantees 
south of the line were not protected by the agreement 
anywhere. A marked line was not immediately necessary 
on their account, the line being a " right" or straight 
line from the Chesapeake bay to the ocean, the portion 
marked because of the urgent necessity above stated fur- 
nished not only conclusive evidence of where the line 
was all the way, but made it easy for the plainest surveyor 



51 



with the simplest instruments to protract it east or west, 
wherever it was necessary or desirable to do so for any 
purpose. The line thus run and partially marked is, the 
commissioners say, "to be received as the bounds of Virginia 
<xnd Maryland on the eastern shore of the Chesapeake bay." 
Not from the Pocomoke river to the sea, leaving the line 
west of that river for fifteen miles either unsettled or to 
follow the meanders of the river and bay to Cedar straits, 
four miles south of the line they had run, but they did 
what they were ordered to do and what they say they did. 
They settled the bounds of Virginia and Maryland by a 
straight line, as the charter required, from the Chesapeake 
bay to the ocean. It seems to me that no other construc- 
tion can be given to the agreement. They met to run the 
line between the colonies according to the charter granted 
to Lord Baltimore and the whole line between the Chesa- 
peake, bay and the sea. They say in their agreement that 
they met for that purpose, and that they did so run it, and 
that their acts are to be so received as covering the whole 
line. Nowhere in all the correspondence, records, or con- 
temporaneous history is any compromise line suggested. 
No map-maker, until very recently, ever drew any other 
than a straight line as the divisional line between the col- 
onies on the eastern side of the Chesapeake bay, and all 
agreed that the Scarburg and Calvert line, as marked 
from the Pocomoke to the marsh by the sea, was a part of 
that straight line; and however much the map-makers 
might be mistaken as to its true location, its existence 
straight from the bay to the ocean was universally recog- 
nized and laid down by thern. We know where it is beyond 
question; and if a thousand map-makers had laid it down 
elsewhere the true location on the land remains, and settles 
all questions concerning it. 

I said there is no evidence anywhere either that any 
compromise line was run or that any other than the true 
line of Lord Baltimore's charter was ever suggested. The 
agreement says they met to run that line, and that they 
ran it. Philip Calvert's commission in 1664 was " to treat 



52 



and determine the said difference concerning Watkins 
Point." 

In the letter ordered by the Council of Maryland in 
1662-'63 to Sir Wra. Berkley they say: " And that on 
their part they would appoint a time when we on our part 
shall attend on them to determine that place which shall 
be accounted ' Watkins Point,' according to his lordship's 
patent for Maryland." Virginia never, so far as appears, 
asked for or sought to establish any other line than the 
charter line as she understood it, when, by her act of As- 
sembly in 1663, she claimed that Accomac county ex- 
tended to Manokin ; when the court of that count}^ ordered 
out the militia; when seven of the citizens made the 
affidavit referred to. All was based upon and set up to 
sustain and enforce the charter line. It is safe to assert 
that there is no evidence even tending to show that any 
other was ever attempted to be established or that any 
other than a "right" or straight line from the bay to the 
ocean was ever thought of. 

There are intimations all through the proceedings that 
Scarburg, perhaps for personal reasons, overreached Philip 
Calvert, and had the line run north of the true line of the 
charter. There is absolutely nothing to sustain any such 
charges or suggestions against Scarburg. It is true he 
attempted to enforce the act of the Virginia Assembly of 
1663 in a very arbitrary way, but it was a very arbitrary 
act which he was ordered to enforce. Sir Wm. Berkley 
disapproved his conduct ; but in March, 1664, after Gov- 
ernor Calvert had visited Virginia, Scarburg w T as again 
appointed at the head of the commission to settle the 
boundary after the accusation and demands for justice 
against him made in Governor Calvert's proclamation of 
June, 1664. When Philip Calvert was appointed to treat 
with the Governor and Council of Virginia and settle the 
disputed boundary, Scarburg was again in 1668 appointed 
the agent of Virginia to close the controversy. He was 
certainly a man of sufficiently high character to be trusted 
by Virginia and the King with most important comrnis- 



53 



sions ; and I know of nothing relative to the question 
before us which warrants us to regard any act of his with 
suspicion or to impute to him any improper motives. It 
is urged that he had obtained large grants of land from 
Virginia north of the true charter line, and that he was 
therefore greatly interested in pushing the line east of the 
Pocomoke as far north as possible. I have failed to com- 
prehend the force of the suggestion, with Governor Cal- 
vert's agreement of June 11, 1668, and Philip Calvert's 
covenant of June 25, 1668, protecting in every way all 
surveys, grants, and entries made by or under Virginia 
north of the line. It might as well have been located at 
Onancock, so far as his landed interests were concerned, 
as where it was. It is too late now to impugn the motives 
of Scarborough. He must stand on the same footing as 
Philip Calvert unless some wrongful act is shown, and 
none is even pretended. If fraud is charged, and a charter 
line established over two hundred years ago is to be set 
aside because of it, some fact should be shown. Finding 
fault with Scarburg now will hardly be satisfactory. I can 
see, however, why he delayed signing the final agreement 
as to the boundary line until Lord Baltimore had ordered 
and Governor Calvert had executed the covenant for the 
protection of the grantees of Virginia north of the line. 

It is apparent from the proof that from 1663 to 1668 
both sides w^ere active in strengthening their respective 
claims. Lord Baltimore was urging his officers to en- 
courage settlers on the debatable ground. In 1666 he 
organized Somerset county, and laid out its bounds thus: 
"All that tract of land within our Province of Maryland 
bounded on the south with a line from Watkins Point, 
being the north point of the bay into which the river 
Wighco (formerly Wighcocomico, and afterwards Poco- 
moke and now Wighcocomico again) doth fall exclusively 
to the ocean on the east," taking, of course, all the terri- 
tory east of the Pocomoke for over four miles south of the 
Scarborough and Calvert line, and in every other way 
sought to sustain his claim south to that point. He had, 



54 



in 1666, 1 assume, abandoued his claim to Onancock. He 
repudiated the theory advanced in the Maryland statement 
that the Watkins Point of his charter was at Watts Island,, 
or at any point south of the southern angle of the country 
he laid out. Virginia, on the other hand, was vigorously 
pushing her claims northward on the eastern side of the 
Pocomoko river, where the lands were far more valuable 
and of course more eagerly sought after. She had not 
crossed into the marshes west of the Pocomoke, but before 
1667 had granted north of the Calvert and Scarborough 
Hue about 33,000 acres, or over fifty square miles of terri- 
tory. If she made any grants north of the line of 1668 
after July, 1667, I have failed to observe them. She was, 
under her act of Assembly of 1663, insisting on her right 
to assert her jurisdiction over all the country from the 
Chesapeake bay to the ocean, south of a line nearly op- 
posite the Patuxent river, some fifteen or twenty miles 
north of the line of Calvert and Scarborough. Collisions 
between citizens, officials, and the respective governments 
were imminent until the Calvert and Scarborough settle- 
ment and line adjusted everything according to the legal 
rights of the parties. McMahon, in his History of Mary- 
land, vol. 1, pages 20 and 21, sets forth these transactions 
with great clearness. He says: 

"These acts of unprovoked hostility on the part of 
Scarborough were at once disclaimed by Sir William 
Berkley as wholly unauthorized, and as the best mode of 
obviating all future difficulties the Governor of Maryland 
set on foot a negotiation with Berkley for the purpose of 
effecting a final settlement of the boundary line between 
the respective possessions of the two governments on the 
eastern side of the bay. The entreaties and remonstrances 
of the former were at last crowned with success, and com- 
missioners were at last appointed, viz: Philip Calvert, on 
the part of Maryland, and on the part of Virginia its Sur- 
veyor General, Edmond Scarborough, who were empow- 
ered to determine the location of Watkins Point, and to mark 
the boundary line between the two colonies, running thence to the 
ocean. By them this duty was fully discharged on the 
25th June, 1668, and in consummation of it certain article* 



55 



of agreement were drawn up and signed by each of them 
on behalf of their respective governments, in one of 
which they designated the point of land made by the north 
side of Pocomoke bay and the south side of Annamessex 
bay as Watkins Point, and the divisional line between the 
two colonies to be ' an east line running with the ex- 
tremest part of the westernmost angle of said Watkins 
Point over Pocomoke river, and thence over Swansecute 
creek into the marsh by the seaside, with apparent marks 
and boundaries.' 

" Thus ceased all the existing causes of controversy with 
the Government of Virginia about the validity or true 
location about the charter of Maryland." 

McMahon evidently had not a shadow of doubt that the 
Calvert and Scarborough line ran straight from the Chesa- 
peake bay to the sea precisely where I contend it does. 

In a recent work by Edward D. Noell, entitled "Terra 
Marie, or Threads of Maryland Colonial History," on page 
151, the writer, after speaking of Scarborough's raid, says: 
" These acts were disclaimed by Sir William Berkley. And 
Philip Calvert on the part of Maryland, and Scarborough 
as Surveyor General of Virginia, on the 25th day of July, 
1668, agreed upon a boundary, an east line from the ex- 
treme part of the most western angle of Watkins Point, 
over Pocomoke river, thence over Swansecute creek into 
the marsh on the eastern shore." 

In a note on the same page he says : " Scarborough, from 
the year 1630, had been prominent as a representative of 
Accomac county, Virginia. His daughter married Custis, 
formerly an inn-keeper in Rotterdam, and the ancestor of 
the first husband of Mrs. George Washington." 

Other historians might be quoted, but it would be only 
a repetition of the ideas, if not the language, of McMahon. 
I doubt whether any expression can be found in any his- 
tory, or any suggestion from any of the public men of 
Maryland or Virginia, or any line drawn on any map, un- 
til quite recently, which intimates either that the line of 
division between Virginia and Maryland from the Chesa- 
peake bay to the ocean was not a straight line all the 



56 



way, or that Calvert and Scarborough only made a partial 
settlement of the disputed boundary in 1668. Lord Balti- 
more evidently was advised promptly of what had been, 
done, and approved the settlement made by Calvert and 
Scarborough. Mr. Lee, in his letter to the Governor of 
Maryland in 1860, says, (see page 12,) " In instructions to 
his son Charles, dated London, 21st March, 1670, Lord 
Baltimore directs that he ' should forthwith make good all 
articles made by our dear brother Philip Calvert on his 
Lordship's behalf, and Colonel Edmund Scarborough, upon 
laying out the bounds between his Lordship's said prov- 
ince and the province of Virginia, in relation to any grant 
of land.' " 

The Virginia grants north of the line were made good 
to all who applied within the seven years as prescribed in 
the agreement, each grant from Lord Baltimore containing 
the following recital : " That whereas, by certain articles 
of agreement, bearing date the 25th day of June, 1668, 
between our dear brother Philip Calvert, Esq., Chancellor 
of our said province of Maryland, of the one part, and Col- 
onel Edmond Scarburg, late Surveyor General of Virginia, 
of the other part, at and upon the laying out the bounds 
and running the divisional lines between Maryland and 
Virgini a, from Watkins Point, on the eastern shore of the Chesa- 
peake bay, to the seaside, 9 ' it was covenanted, &c. Therefore 
the lands were granted. 

These recitals, if there is nothing else, appear to me 
conclusive proof of the fact that the divisional line was run 
by Calvert and Scarburg from the eastern shore of the 
Chesapeake by a straight line to the ocean. The proba- 
bility is that Philip Calvert, the Chancellor of Maryland, 
either drew or directed the preparation of the grants con- 
taining these recitals. AH the facts show that they were 
prepared carefully by some well-informed person. I can- 
not understand, in the face of the recitals above set forth, 
in contradiction of the avowed object of the contracting 
parties and of their own statements as to what they did, 
how it can be successfully maintained that Calvert and 



57 



Scarburg only settled the bounds between the two colonies 
from the Pocomoke river, fifteen miles east of Chesapeake 
bay to the Swansecute marshes, seven miles from the 
ocean. 

Some stress is laid by the majority of the board upon 
one or two facts that I may as well notice here. One is 
that Scarburg and others had, in July, 1664, made affidavit 
that the Watkins Point on John Smith's map was as far 
north of the "small spiral point" afterwards determined 
by Calvert and Scarburg to be the "Watkins Point" of 
Lord Baltimore's charter " as a man could see on a clear 
day." That affidavit is pronounced false. If these gentle- 
men had the same copy of Smith's map before them which 
we have, I would say it was not true ; but I clo not know 
what the map they had showed. It was agreed on the 
hearing that the plate from which the map we have was 
taken was found more than a century afterwards among 
some rubbish in a town in Pennsylvania. I do not know 
whether the affidavit makers were deceived by a false map 
or not. For aught I know, they may have had a copy of 
Smith's map, which varied from the truth as much as the 
copy accompanying the Relation of Maryland did. The 
Grand Assembly of Virginia, in September, 1663, after 
saying "some ignorant or ill-disposed persons " had con- 
troverted where Watkins Point was, said " this Grand 
Assembly, by the care and special inquiry of five able- 
selected surveyors and two burgesses and the due examin- 
ation thereof," conclude that " Watkins Point," according 
to John Smith and discoverers with him in 1608, was op- 
posite the Patuxent river, at least fifteen miles north of the 
point where it was fixed in 1668. So that the same charge 
might with equal propriety be made against that body of 
men, and Lord Baltimore's claim to Onancock might be 
criticised with equal severity. 1 am unable to appreciate 
how any of these things weaken the force of the facts I 
have shown. 

Another point is that Calvert and Scarburg say in their 
agreement that they, "after a full and perfect view taken 



58 



of the point of land made by the north side of Pocomoke 
bay and the south side of Annamessex bay, have and do 
conclude the same to be Watkins Point, from which said 
point, so called, we have run an east line," &c. It is con- 
tended that the language of the agreement would be com- 
plied wi f h if the line was run from the eastern line of the 
body of land thus designated to the ocean. This is an 
exceedingly strained construction, and I think a very wrong 
one. It is evident that a line so run would not have been 
a division line between the colonies from the Chesapeake 
to the sea, which was the object they professed to have in 
view, and which they said they had accomplished. 

~No man with a map before him, and certainly no man 
standing on the ground, as Calvert and Scarburg say they 
did, and took a " full and perfect view" of the whole body 
of land, could assume that the body of land "made by the 
north side of Pocomoke bay and the south side of Annamessex 
bay" on which they determined that the true mathemat- 
ical point to start their line of survey was, giving it the 
broadest construction possible, reached as far east as the 
point on the Pocomoke river, where the marked trees on 
the line are admitted to be by from three to four miles. 

The counsel for Maryland, it is true, drew a line from 
Kingston, on the Annamessex, to Rehoboth, on a bend of 
the Pocomoke river, eight or ten miles from what anybody- 
pretends is Pocomoke bay, and claimed that to be the line 
Calvert and Scarburg intended and meant to comprehend 
in "Watkins Point" by the language used in their agree- 
ment. That claim was more extreme than the claims of 
Virginia and Maryland to Manokin and Onancock. It 
would be as logical to say that the Chesapeake bay extends 
to Harper's Ferry, on the Potomac, or to Harrisburg, on 
the Susquehanna, as to assert that Pocomoke bay extends 
or ever extended to Rehoboth, or that Calvert and Scar- 
burg ever intended by the language they used to say that 
it did. A river may, when called for, be construed to 
include the bay into which it flows, for some distance at 
least, but a bay cannot possibly include the river, whose 



59 



stream forms or helps to form it either to its source or 
along its well-defined banks miles distant from its mouth. 

They say that they met on Watkins Point, from which 
"point" they ran the line over Pocomoke river to the sea- 
side, which was to be received as the bounds of Virginia 
and Maryland on the eastern shore of the Chesapeake 
bay. I cannot see how it can be asserted now that they 
did not run from Watkins Point; did not go within fif- 
teen miles of the Chesapeake; did not run across Poco- 
moke river ; did not do any of the things they say they did. 
Yet, if their line is recognized only from Pocomoke river 
east, every statement made by them is disregarded, and a 
line is established which palpably violates the charter and 
contradicts every fact which Calvert and Scarburg assert to 
be true. How could they start from "Watkins Point" 
and run across the Pocomoke river if they began their line 
east of this river? How can the line be a right line from 
Watkins Point to the ocean if it begins at Cedar straits, 
four miles south of the Calvert and Scarborough line, and 
meanders through Pocomoke bay and up the river four 
miles north of its starting place to the line of 1668, and 
then follows it east to the sea. " We are directed to as- 
certain and determine the true line between the States, 
not to make lines arbitrarily." The crooked line mean- 
dering from Cedar straits up to the Pocomoke bay and 
river to the Calvert and Scarborough line cannot possibly 
be the charter line, which all must admit was a straight 
line from the Chesapeake ba}^ to the ocean. It will not do 
to assert, without proof and without suggestion of the 
truth of the assumption, that Calvert and Scarborough, 
over two hundred years ago, ran a false line and cheated 
Lord Baltimore out of a strip of country from the Poco- 
moke river to the ocean, four miles wide and twenty-six 
miles long, when it was run and settled by his chancellor 
and confirmed by himself, with full knowledge ot all the 
facts, and the line so established asserted by him to be his 
charter line in every possible form. I have shown the re- 
citals in the grants made by hirn immediately afterwards;. 



60 



there were hundreds of them, conveying 33,000 acres, all 
asserting that the Scarborough and Calvert line was his 
true divisional charter-line from the Chesapeake bay to the 
ocean. 

When it is admitted that the Calvert and Scarborough 
line of 1668 is the true line of division, as it must be after 
two hundred years, and when the charter-liue is conceded 
to be a straight line from bay to ocean, which cannot be 
denied, when the exact line of their survey is fixed by 
thirty-three marked trees and other permanent objects, as 
Mickler found was true in 1858, the western end on the 
bay and the eastern end on the ocean are fixed by simply 
protracting the line according to the marked objects. 'No 
mathematical problem can be simpler or plainer. When 
it is asserted that two and two make four, the argument is 
exhausted. This proposition is of that character. We 
know that Virginia and Maryland each holds east of the 
Pocomoke by the boundaiw line laid out and marked by 
the commissioners, asserting it to be the line of the char- 
ter, which is fully confirmed by grants to that divisional 
line on both sides. Surely it must be evident that the 
property south of that straight line west of the Pocomoke 
river must be given to Maryland, if at all, not by her 
charter line as settled in 1668, but because of her continued, 
undisturbed possession of it. The settlement of the boun- 
daries of the provinces from the Chesapeake to the sea. was 
reported by Lord Baltimore to the King and the colonial 
office in London, and was accepted by them as a straight 
line throughout. We have a letter written by order of the 
King to Lord Baltimore, August 19, 1682, in which he 
tells him the true way to prevent any complication be- 
tween himself and William Penn as to the divisional line 
between Maryland and Pennsylvania is "by an admeasure- 
ment of the two degrees north from 'Watkins Point,' the 
express south bounds of your patent, and already settled 
by commissioners between Maryland and Virginia." That 
was strictly true. It had been settled by Calvert aud 
Scarborough on the line laid down four miles north of 



61 



Cedar straits, from which point Lord Baltimore would 
certainly have measured if he had agreed to the measure- 
ment. 

The King, in the same letter, directs him to "determine 
the northern bounds of your province as the same borders 
on Pennsylvania by an admeasurement of the two degrees 
granted in your patent, according to the usual computation 
of sixty English miles to a degree, beginning from the south 
bounds of Maryland, according as the same are already set- 
tled by commissioners, as is above mentioned." In this 
clause the King did not tell him from what point of his 
southern line to begin his measurement. As the line was 
an east and a straight one from the Chesapeake to the sea, 
it made no difference to Lord Baltimore or William Penn 
from what point of it he started. The measurement of two 
degrees of latitude necessarily assumed that the lines north 
and south were straight. It is impossible to suppose that 
either the King or his council or the colonial ministry sus- 
pected that Lord Baltimore could run his line four miles 
further north into Pennsylvania, if he started from the east 
side of the Pocomoke river, on the line run by the com- 
missioners, w T hose action they assumed was final, than he 
would if he started from the point now called by Maryland 
" Watkins Point," in the Chesapeake bay ; yet that would 
be the fact if the theory of the crooked line be true. The 
King's letter accepted and confirmed the Calvert and Scar- 
borough line. Virginia being a royal province, the King 
and Lord Baltimore alone had to agree to it. It must be 
obvious that neither the King nor his council suspected 
when that letter was written that William Penn would lose 
a strip of territory four miles wide from the meridian of the 
first fountain of the river Potomac on the west to the ocean 
on the east, if Lord Baltimore started east of the Pocomoke 
river to run his two degrees north, more than would be 
taken if he began on the Chesapeake bay. Nor was it 
suspected that he could, after getting that advantage over 
Penn, leave the line on the east side of the Pocomoke and 
reach down into the King's province west of that river for 



62 



four or five miles, when his charter called for a straight 
line all the way, and the commissioners had said that they 
had so run it. Lord Baltimore in the same year wrote to 
Penn as follows: "My southern bounds being Watkins 
Point, was so determined by commissioners from his Ma- 
jesty and others from my father. Now, had they set Wat- 
kins Point higher up the bay, my father must have been 
contented therewith, and the northern bounds being the 
40th degree of northern latitude, beyond which I am not 
to run." These letters show, first, a final settlement agreed 
to by both parties; and, second, that the line of the settle- 
ment was a straight one from the bay to the ocean, from 
any part of which the two degrees north might have been 
measured. 

The majority of the board rely on the fact that the map 
of Herrman, published in 1673, which was followed sub- 
stantially, indeed copied from by a majority of the sub- 
sequent map-makers, including Fry and Jefferson and 
Thomas Jefferson, as shown upon their face, draws the 
divisional line straight from the ocean along the Calvert 
and Scarborough line to a fictitious point corresponding 
somewhat with what is called Cedar straits. Herrman had 
followed Lord Baltimore's map of 1635 as to the location 
of his line, which is the only way to account for his blun- 
der on the ground of honest mistake. I repeat that the 
only fact which the old maps establish is that Calvert and 
Scarborough did run a divisional line from the bay to the 
ocean, and that it was a straight line all the way. They make 
the line of 1668 a part of the line of their maps. Herrman 
says on his : " These limits between Virginia and Maryland 
are thus bounded by both sides deputies, the 27th May, 
A. D. 1668, marked by double trees from the Pocomoke 
east to the seaside to a creek called Swansecute creek." 
Fry and Jefferson's and Thomas Jefferson's maps each note 
the fact that the line they trace was run in 1668. There 
is no reason for believing that any of them ever were on 
the ground or professed to know with any accuracy where 
the line of 1668 was, and they all laid it down wrong. We 



63 



know exactly where it is. Michler in 1858, under the super- 
vision of the commissioners of both States, ran it from the 
Swansecute marsh to the bay. He found thirty-odd of 
the old line trees and other monuments of Calvert and 
Scarborough along the line east of the Pocomoke river. 
He protracted it west of that river for fifteen miles, and 
struck the Chesapeake bay at the extreme western angle 
of the body of land formed by the north side of Pocomoke 
bay and the south side of Annamessex bay, nearer the 
former than the latter, at the exact spot from which or 
agreeable to which Calvert and Scarborough say they ran 
their divisional line in 1668. De la Camp protracted it after- 
wards for other commissioners of both States seven miles 
^ast to the ocean, and Junken ran it west over the present 
Smith's Island on the bay. If the map-makers had had 
the surveys of that line before them which we now have 
they would have drawn the divisional line to the true Wat- 
kins Point at the westernmost angle. It would have been 
impossible for them to have done otherwise and retain the 
line of Calvert and Scarborough, which was the acknowl- 
edged basis of the line they drew. That proposition needs 
only to be stated. The conclusion lollows that the map- 
makers were all wrong, and all that their maps prove is 
that they are wrong, as no one will contend that the line 
of 1668 ever was where they lay it down. They make it 
cross Pocomoke bay at least four miles south of the mouth 
of the river, in order to run it straight to a false point 
made on paper to fit the line, instead of crossing the river, 
as we know it does, four miles north of its mouth, near 
Robert Holston's, running west to the promontory at the 
point four miles north of Cedar straits. If any or all of 
these old maps had been placed in the hands of Lieutenant 
Michler or any other competent engineer, and he had been 
told to run the boundary line according to the information 
they gave him, his first step would have been to find the 
Calvert and Scarborough line. As soon as he located 
three marked trees on it his duty was plain and his task 
easy, and the old maps and all false points would have 



64 



been discarded and the line protracted by the ascertained 
straight line on the ground. 

Herrman's map was approved and indorsed by Lord 
Baltimore, as his answer to the question of the commis- 
sioner in London, March 26, 1678, shows. He says : " I 
answer that the boundaries, latitude, and longitude of this 
province are well described and set forth in a late map or 
chart of this province lately made and prepared by one- 
Augustine Herrman, an inhabitant of the said province, 
and printed and publicly sold in London by his Majesty's 
license, to which I hereby refer for greater certainty.'* 
This was a clear recognition of the line of 1668 promi- 
nently laid down on the map, and of its being a straight 
line all the way, as his charter required. This map had 
the double effect of making all subsequent map-makers 
follow him in his false Watkins Point, and of making Vir- 
ginia and all persons seeking to locate lands in that colony 
believe that by the line of Calvert and Scarborough she 
had no lands to grant west of Pocomoke river, which 
rationally accounts for her failure to take possession of any 
land south of the line of Calvert and Scarborough west of 
the Pocomoke. Herrman wrote the words Watkins Point 
in large letters all over the body of land, as a book of his 
map will show. It does not appear that any plat of the 
line or map of the country was ever filed anywhere by 
Calvert and Scarborough, so that the colonies or people 
might know what each was entitled to. 

That Virginia never consented to a crooked line or gave 
up knowingly any portion of the land she was entitled to 
by virtue of the division made in 1668 is shown conclu- 
sively by the fact that in 1682 she still complained of en- 
croachments on her true boundaries in her report to the 
King and council, in which she said: "Neither are our 
northern boundaries less encroached on by the Lord Bal- 
timore by an unfair line from the pretended point of land 
called 4 Watkins Point?" east to the sea, by which (as sup- 
posed) "there is at least fifteen miles lost Virginia. '* 
She evidently assumed that the line she complained of had 



65 



"been run straight east from the Watkins Point on the 
Chesapeake to the ocean, and she never suspected, what is 
now for the first time suggested, that Scarborough had 
cheated Philip Calvert so as to get the line east of the 
Pocomoke four miles north of the charter line. She 
charged fourteen years afterwards that the line was un- 
fair to her. Surely she granted Maryland nothing which 
the line of 1668 gave to her. Maryland's possession south 
of the line west of the Pocomoke was obviously the result 
of Virginia's ignorance of her rights — the false impression 
produced by erroneous maps, which showed that there 
was no land south of the line west of Pocomoke. The 
almost utter want of value of that land, its want of conven- 
ient connection to the balance of Accomac (three fourths 
of what there was of it being swamp) prevented any Vir- 
ginia citizen from asking a patent for it. Very few patents 
were granted by Maryland south of the line for from five 
to eight years after 1668. It was gradually but slowly 
taken up by fishermen and others after the better land was 
patented. The now known value of the oyster fisheries 
was not then even suspected. If it had been, more atten 
tion would have been paid to the line. 

Stress is laid on the 21st section of the Virginia consti- 
tution of 1776, in which she surrendered to Maryland, 
Pennsylvania, and North Carolina, the territories con- 
tained in their charters; which, by the way, Maryland did 
not accept, if acceptance was necessary. It seems to me to 
confirm my view. Virginia had never, so far as appears, 
repealed her act of September 10, 1663, claiming the line 
of the county of Accomac as running east from near Nan- 
ticoke, some fifteen miles north of the Calvert and bear- 
borough line. She now consented that the charter lines 
as fixed in 1668 should be considered as permanetly estab- 
lished. But it never entered into the brain of any man in 
Virginia or Maryland that the constitution meant to annul 
the line of 1668, and let Maryland run a new line from 
Cedar straits, either east to the ocean, or by a crooked 
line, which is now sought to be declared the true line, to 
5 



66 



which Virginia in 1776 surrendered her claim. In the 
Maryland convention which met to frame the constitution,, 
the following resolution was adopted October 30, 1776: 

" Resolved unanimously, That it is the opinion of this Con- 
vention that the sole and exclusive jurisdiction over the- 
territory, bays, rivers, and waters included in the said 
charter, belongs to this State, and that the river Potomac, 
and almost the whole of the river Pocomoke, being compre- 
hended in the said charter, the sole and exclusive jurisdic- 
tion over the said river Potomac, and also over such part 
of the river Pocomoke as is comprehended in the said charter, 
belongs to this State, and that the river Potomac and that part 
of the Chesapeake bay which lies between the capes and the 
south boundary of this State , and so much thereof as is neces- 
sary to the navigation of the rivers Potomac and Pocomoke, 
ought to be considered as a common highway, free for the people 
of both States, without being subject to any duty, burthen, or 
charge, as hath been heretofore accustomed. 3 ' 

If the charter line ran east from Cedar straits no part 
of the Pocomoke river could possibly be in Virginia. Not 
only "almost" the whole, but the entire river and a large 
portion of the bay would have been in Maryland, and the 
same clear assertion of claim would have been made to it 
that was set up in regard to the Potomac. The language 
used is precisely such as would be adopted to maintain the 
line of Calvert and Scarborough, which crosses the Poco- 
moke some four miles from its mouth, leaving "almost 
the whole of the river Pocomoke" in Maryland compre- 
hended in Lord Baltimore's charter. 

They had practically located their southern boundary 
on the line of 1668, east of the river from that date, and 
Worcester county, which was laid off in 1742, never 
sought to claim any jurisdiction south of that line. The 
action of the convention dissipates all idea of any grant 
from Virginia or any claim of Maryland by adverse pos- 
session of any land south of the charter line. 

The compact of 1785, the language of which, I agree, 
was carefully considered, and is entitled to great weight 
in our determination on this subject, is full of statements, 



67 



suggestions, and covenants, fortifying the view I take. 
Section one agrees " that the waters of the Chesapeake bay 
and the river Pocomoke within the limits of Virginia be 
forever considered as a common highway," &c. 

Section eight provides that laws and regulations for keep- 
ing the channel, &c, "of the river Pocomoke within the limits 
of Virginia" shall be made with the consent of both States. 
How did the river Pocomoke get within the limits of Vir- 
ginia for any part of its course, as both States by that com- 
pact (now made perpetual) admitted and agreed that it is, 
if the boundary line of Calvert and Scarborough was not 
run as I contend it was ? No part of it even could be in- 
cluded in Virginia if the charter line ran from Cedar straits 
east, or if Calvert and Scarborough only ran the divisional 
line east from the Pocomoke river to the sea, and con- 
sented to or agreed on the crooked line now proposed to 
be made from Cedar straits to their line by the meanders 
of the Pocomoke bay and river. Certainly no part of the 
river is within miles of any part of Virginia on Herrman's 
map or the maps of Mr. Jefferson and others who followed 
him. 

Section ten admits that there may be doubt as to the 
exact location of Watkins Point. But while that doubt 
remains unadjusted, Virginia reserves the exclusive right 
to try all offenses committed in the doubtful or disputed 
waters by foreigners on foreigners. The doubt probably 
had sprung up by reason of the erroneous location of 
Watkins Point on many of the maps, and by the possession 
by Maryland of land south of the line. But it shows that 
Maryland admitted the doubt as to her right to hold it 
even then, and neither asserted a grant from Virginia for 
it, as it is now alleged must be assumed, nor set up adverse 
right by such holding. 

Truth is always consistent. Each link in the broken 
chain, when found, will fit and agree with every other. I 
propose to submit this chain of evidence to that test. Cal- 
vert and Scarborough only marked their line; only ran it> 
as claimed by my colleagues, from the Pocomoke river to 



68 



the marsh by the seaside, leaving seven miles east of the 
line they marked, before the end of it on the ocean was 
reached. What became of that section of the country? 
Mr. John De la Camp, engineer to the joint Maryland and 
Virginia boundary commission in 1868, tells the whole 
story in his report. He says: "The part of the line be- 
tween Chineoteague bay and the Atlantic ocean involved 
the prolongation of part of the line on the mainland visible 
from the shore across the Chineoteague bay to the islands 
bordering on the Atlantic ocean. And here a little diffi- 
culty arose. Although this prolongation was executed with 
as much care as circumstances admitted, the line touched 
' those islands at points north of the traditionary line, which 
divides two large tracts of land, the deeds of which were 
recorded in the land offices of the two respective States, 
calling for this line as the State line. This traditionary 
line is marked by strong posts, and at the west shore of 
Pope's bay even by a stone monument" 

The sub-committee for both States " agreed upon recom- 
mending the traditionary line acknowledged by the land 
offices of both States as the boundary line," which, with 
the stone monument as a pivot, leaves about the same 
quantity of land in each State as if the Calvert and Scar- 
borough line had been exactly prolonged. Surely these 
facts show that the Calvert and Scarborough line was 
extended substantially for seven miles further than they 
marked it, even to the ocean, and the patents from Lord 
Baltimore and Sir William Berkley, commencing within 
as few years after 1868, called for the divisional line, which 
Mr. De la Gamp found marked as he described, doubtless 
by the State surveyors who made the surveys on which 
the grants were issued. It would be useless to cite further 
proof as to the eastern end of the line; that given is con- 
clusive and uncontroverted. 

Next, as to the western end. Let us see what links are 
there. General Michler,iu his report to the joint commission 
in 1869, speaking of the western angle at Jane's Island, says : 
" Although the angle at this point of land where it strikes 



69 



the sound is, even at this day, the most western one, still 
many years ago the land made out into the sound a much 
greater distance. 'Jane's Island' is said by Captain John 
Nelson, aged 72 years, to have extended within his recol- 
lection to the present position of the light-ship now an- 
chored about a mile aud a half out from the present shore- 
line." * * * " The land lying south of the prolonged 
or broken line is principally marsh, the area of firm land 
south of it and west of the Pocomoke not exceeding eight 
square miles." There is no doubt, therefore, that the point 
from which Calvert and Scarborough started their line of 
survey from the Chesapeake bay east to the ocean was the 
extremest western angle of the body of land formed by the 
north side of the Pocomoke bay and the south side of An- 
namessex bay; that it was the only promontory on the 
bay, all the bay coast south of it being mere marsh, palpa- 
bly always so at Cedar straits. That their line was actually 
run from that angle is obvious. Nobody, I presume, will 
venture to assert that they could have run a line from the 
Pocomoke river, which was fifteen miles distant, east to 
the ocean so accurately by guess that Michler, with his in- 
struments, would strike the very mathematical point on 
Chesapeake bay which they had described in their agree- 
ment as the point from which they started. The age of 
miracles had passed before their day, and if it is to be 
assumed that they intended to state a falsehood, they could 
not possibly have made it correspond so accurately with 
the truth : they must have run it, or Michler never could 
have traced it back two hundred years afterward for fif- 
teen miles on the reverse line to the very spot they de- 
scribed. 

Lord Baltimore granted that extreme westernmost point 
March 19, 1666, two years before the line was run, to 
Henry Smith. The patent contained 150 acres, describing 
it as U A parcel of land formerly called Smith's Island, (now 
a peninsula,) lying and being in Annamessex, beginning 
at a marked tree standing on the southernmost side of the 
island; thence running E. by N\, by the bay side, to the 



70 



mouth of Cornelias Ward's creek; thence running 1ST. by 
W. to a marked pine standing by the bay side; thence 
running W. by S. to a marked tree standing on the north- 
ernmost side of the island; thence running by the bay 
side, including the pitch of the point, to the first bounds." 
This patent shows several noticeable facts. First, there 
were plenty of trees there which never grow on the 
marshes; there never was a tree on the mainland within 
three miles of the angle at Cedar straits claimed by Mary- 
land to be the " Watkins Point " of the charter. Smith, 
in his history, says there were trees on the Watkins Point 
he named on which they made marks and crosses. 
Whether the surveyor found the "marked pine" Lord 
Baltimore's patent calls for, or made the marks on it, can- 
not perhaps be determined. John Smith and his com- 
panions had marked trees there many years before. Second, 
it was a point, and a point of high land on which trees 
grew; a promontory or headland. Third, it had " form- 
erly," long before it was granted to Smith, before either 
Lord Baltimore or any private person had any occasion to 
give it a name, been called "Smith's Island," most prob- 
ably after Capt. John Smith himself from the names, notes, 
marks, and crosses he and his companions had placed on 
the trees half a century before. 

On the 11th day of June, 1672, four years after Calvert 
and Scarburg had run the line from it and fixed it as the 
true Watkins Point" of Lord Baltimore's charter, Smith 
conveyed one half of it to Edward Price r and in the con- 
veyance, after setting forth his patent in full, among the 
lines by which he conveys is the following: " Thence run- 
ning down the aforesaid bay side to the northernmost side 
of the point called 'Watkins Point,' and from thence run- 
ning round the said point to a pond called Duck pond," &e. 
How did that point acquire the name of Watkins Point be- 
tween 1666 and 1672 if Calvert and Scarburg did not so 
name it in 1668 ? That it did acquire it is not a fact de- 
pending on tradition or the truthfulness of witnesses de- 
tailing old men's legends; it is a recorded fact, made at 



71 



the time when all the facts were fresh, and its materiality 
in this or any other controversy could not have been sus- 
pected. It is worth all the speculations and guesses of 
men after two hundred years have elapsed. I do not see 
how the question can be answered, except by the fact of the 
determination in 1668, that it was the true Watkins Point. 
That name and the accuracy of the line as developed by 
Michler, coupled with the facts in Smith's History, and the 
acknowledged and proved character of the land there and 
above and below it, are themselves sufficient now to show 
that the divisional line was in fact run and properly run from 
that point in 1668. All the witnesses agree that this point, 
soon afterwards called Jane's Island, was the highest point 
on that part of the bay, indeed the only "promontory or 
headland" on it; that it was called the Mountain of Anne- 
messex; that there was a peach orchard onit in former times; 
that it extended far out towards the present Smith's Island, 
which is still clearly shown by the soundings laid down on 
the charts of the Coast Survey. The Maryland statement 
sets forth these facts so clearly that it is only necessary to 
refer to it to show that it had all the requisites of the 
Watkins Point" of the charter, while the angle at Cedar 
straits had none of them. 

I propose now to follow the patents and deeds over 
"Smith's Island," which is situated in the bay of Chesa- 
peake, about five miles from the present bay shore, and 
see how far they elucidate the question. It is certain that 
a line from Smith's Point on the Potomac or Cinquack 
south of it to Cedar straits would not intersect that island, 
but would run south of it altogether, while a line drawn to 
the Watkins Point I contend for would intersect it. 

Some care is required to prevent confusion while speak- 
ing of the line across this island because of the number of 
Smith's Points and islands in the vicinity, and because of 
the changes in the names of places which occurred about 
the time referred to; Smith's Point on the Virginia side 
of the Chesapeake, at the mouth of the Potomac, though 
in fact an island, was never called one, and it is nowhere 



72 



referred to in connection with grants on the eastern shore 
or on the island in the bay now called " Smith's Island," 
though counsel on both sides of this controversy at one 
time thought it was the Smith's Island referred to in the 
first grant by Sir William Berkley, made in 1667, on the 
present Smith's Island; they all abandoned that theory 
when the facts were carefully examined and understood. 
The large island in the bay now called Smith's Island, 
which lies much nearer the eastern than the western 
shore of the Chesapeake, and was much nearer, as Mie ti- 
ler's report shows, to the " Watkins Point," I claim as 
the true one, two hundred years ago, than it is now, had 
no name till after the Calvert and Scarburg line was run. 
It was barely marked on Smith's map, and was not noticed 
by Lord Baltimore in 1666 when he laid off Somerset 
county; yet an equitable division of it became necessary 
about that time in order to settle all questions of boundary 
between the colonies on the eastern shore to which this 
island naturally belonged. At that time the only Smith's- 
Island known was the westernmost angle of the Watkins 
Point of Calvert and Scarburg, as shown by the patent of 
Lord Baltimore for that point in 1666, as already explained. 
With this explanation the patents and deeds for and on 
the present Smith's Island will be easily understood. The 
first grant on it was by Sir William Berkley, Governor of 
Virginia, to Henry Smith, October 9, 1667, for 1,000 acres, 
described as being in Accomac county, Virginia, "begin- 
ning where the east and west line from 'Smith's Island' 
intersects, and bounded on the northern part therewith," 
thence by lines so as to embrace all the island south of 
that line. Several important questions are suggested by 
this grant. It will be remembered that after the Scarburg 
raid in 1663, friendly negotiations and personal inter- 
views were had between Governor Calvert and his Chan- 
cellor, Philip Calvert, and the Governor and Council of 
Virginia, for the purpose of determining and establishing 
the true line of division between the colonies on the eastern 
shore. Lord Baltimore had in 1666 so far withdrawn his 



73 



extreme claim as to abandon the line east from Onancock, 
and laid off Somerset county, claiming Cedar straits as his 
southern boundary, running his line from thence east to 
the ocean. Under that claim all of the present Smith's Island 
(then without a name) would necessarily have been in 
Maryland, yet the Governor of Virginia, in October, 1667, 
issued a patent for part of it, calling for an east and west 
line from Smith's Island, (soon afterwards called Jane's 
Island,) on the main eastern shore, as the northern boundary 
of his grant, which line is over four miles north of an east 
and west line from Cedar straits, and grants land which 
could not possibly belong to Virginia, on the theory that 
Cedar straits was the initial charter point on the bay. If 
there was no such line from " Smith's Island " as the patent 
called for how could he have referred to it ? It will hardly 
be answered that he created an imaginary line, when its 
existence is proved by the agreement of Calvert and Scar- 
burg, and two hundred years later is traced with absolute 
accuracy by Michler across the eastern shore to the bay, 
and by Junkin and others across the island, and when it is 
supported, as I will show, by patents and deeds from Lord 
Baltimore and his grantees and by subsequent patents and 
deeds from Virginia. 

Of course there is difficulty in explaining accurately how 
Sir Wm. Berkley, in October, 16 ; 7, could refer in his 
patent to Smith to the east and west line from the main 
shore at " Smith's Island," and why he continued the east 
and west line across the large nameless island in the bay. 
He did it, and in the absence of nearly all the old colonial 
records of Virginia, which, we were advised, have been 
destroyed, with many of the old records of Maryland also 
gone, the probabilities of the case, as shown by secondary 
evidence, must govern our conclusions. The Calvert and 
Scarburg agreement was not signed till June, 1668. The 
line run and agreed to by them is the only one which was 
ever run. Their line did not extend west of the eastern 
shore of the Chesapeake bay. How, then, it may prop- 
erly be asked, could Sir Wm. Berkley know in October, 



74 



1667, where that line would run by which he bounded his 
patent to Smith on the north ? 

I am satisfied this Watkins Point of Lord Baltimore's 
charter was subsequently agreed on by Philip Calvert and 
the Governor and Council of Virginia, and the location 
of it on Smith's Island on the main shore determined on 
before October, 1667, and that it was agreed that the out- 
lying island in the bay should be treated and divided by 
the same divisional line as that agreed on for the division 
of the mainland. Many facts other than the action of Sir 
¥m. Berkley sustain that assumption. We had record 
evidence before us that on the 11th day of June, 1668, two 
weeks before Calvert and Scarborough signed their agree- 
ment as to the boundary and land grants, Charles Calvert, 
the Governor of Maryland, signed a covenant setting forth 
in detail the names of the persons and the exact number of 
acres which had been cut off by the line assumed to have been 
settled prior to that date, in which he says: u Whereas the 
lands belonging to the persons above mentioned are found, 
since the lines are laid out on the eastern shore in Somer- 
set county, to be within this province of Maryland, I do 
hereby promise to ratify and confirm, by virtue of his 
Lordship's instructions to me directed, every of the lands 
by patent or grant," &c, made by the authorities of Vir- 
ginia. Not only had the lines been all settled then, but 
the Governor had received definite instructions from Lord 
Baltimore, then in England, exactly what to do in regard 
to them. Of course Lord Baltimore issued his instructions 
because of information as to all the facts first sent to him 
from Maryland, which, by the ordinary means of communi- 
cation then, it is agreed, would have taken many months, 
rendering it highly probable that the agreements were all, 
in fact, made before October, 1667, and their formal ratifica- 
tion and settlement delayed till Lord Baltimore was fully 
advised and gave his sanction and orders as to the final 
and formal communication of them. In this connection, 
as before suggested, I can understand how Scarborough's 
grants north of the divisional line may have operated to 



75 



delay final action in signing the agreement as to the bound- 
ary. He alone had power, by virtue of his commission as 
surveyor general, to lay off the boundaries of the colony, 
subject to the advice and order of the Governor and Coun- 
cil. He might as well have held back the final ratifica- 
tion of the divisional line until instructions were received 
from Lord Baltimore and his orders consummated protect- 
ing all the Virginia grants north of the line in which he 
was so largely interested. The covenant of Governor Cal- 
vert is on pages 34 and 86 of the volume of statements and 
evidence, dated 1872, submitted to us. I have examined it 
as carefully as I could to ascertain when the grants pro- 
tected by it were made. Many of them will be found on 
pages 136 and 137 of that volume, and I have been unable 
to find that any of these patents were issued or any of the 
entries made after July, 1667. They run from 1661 to 1666 
— numbers of them in the latter year. If the fact is as I 
believe it to be, it strongly fortifies the assumption that the 
line was in fact agreed on before July, 1667, and explains 
how Sir William Berkley issued the patent at that time on 
Smith's Island, calling for the line on the main eastern 
shore. If no such line had been agreed upon, it is hard to 
understand why the granting of patents by Virginia, 
which had been so actively carried on in 1666, should have 
ceased in 1667. The patent of October, 1667, certainly 
shows that Sir William Berkley knew of the existence and 
general location of the line at that date; and his grantees, 
Henry Smith and Colonel William Stevens, who aided Cal- 
vert in establishing the line, knew beyond question exactly 
where the line would terminate on the main shore and how 
.an east and west line drawn from it would divide the island 
in the bay. The next patent, indeed the patent for the 
balance of this island was issued by Lord Baltimore on 
the 2d day of September, 1682, for 1,000 acres to Henry 
Smith, of Somerset county, Maryland, as assignee of Col- 
onel William Stevens, of that county, and the same person 
who had received the one-thousand-acre grant from Sir 
William Berkley, Governor of Virginia, in October, 1667. 



76 



The patent recites that it was issued u according to a 
certificate of survey thereof taken and returned unto the 
land office of the city of St. Marie's, bearing date the 7th 
of June, 1679, and there remaining upon record." Unfor- 
tunately the record of that survey cannot be found. The 
grant is called 14 Pittscraft," and among the lines described 
in it is the following : " Thence for the eastern boundaries, 
bounded down the side of said sound by the said sound to 
the divisional line drawn between Maryland and Virginia; 
thence for the southern boundaries, bounded by the said 
divisional line running west to the aforesaid bay side." 
There are several noticeable facts in this patent: First. Be 
it remembered that if Calvert and Scarburg only ran their 
line from the Pocomoke river east to the sea, leaving all 
the balance of the line to be divided by meandering down 
the Pocomoke river and through the sound to the southern 
angle, now called by Maryland " Watkins Point," no di- 
visional line, such as Lord Baltimore describes in this 
patent, could by possibility have been run through any 
part of the island to which this grant relates. Second. 
This patent runs an east and west line across the island, 
exactly as the patent from Sir William Berkley had done, 
showing that a prolongation of the main-shore line had 
been agreed upon. It is assuming a good deal to suppose 
that Lord Baltimore and his officials, as late as 1682, were 
ignorant of the true boundaries of the provinces, when, as 
early as 1656, he had by proclamation directed his Gov- 
ernor and council " to cause the bounds of Maryland to 
be kept in memory and notoriously known, especially the 
boundaries between Maryland and Virginia on that part 
of the country known there by the name of the Eastern 
Shore." 

And it would be assuming still more to assume, in 
order to fix a " Watkins Point " at Cedar straits, that 
Colonel William Stevens, who had the survey of Pittscraft 
made, did not know that an east and west line from that 
point would leave no divisional line on the island on which 
his patent was laid, and that Henry Smith, who had ob- 



77 



tamed a patent from Governor Berkley for 1,000 acres of 
it in 1667 at that time, and when he took the assignment 
of Stevens's survey, both being citizens of Somerset county, 
Maryland, did not know all about the true location of the 
line spoken of and agreed to in both patents. Lord Balti- 
more's patent called for the same line as Sir William Berk- 
ley's, calling it the divisional line between Maryland and 
Virginia. Sir William Berkley had called for the east and 
west lines from Smith's Island, so that both agreed pre- 
cisely with the line of 1668 ; therefore, whatever mistakes 
map-makers made, or however they laid down the islands, 
rivers, or bays, it was impossible for Henry Smith or Col- 
onel William Stevens, both intelligent citizens of Mary- 
land, to be mistaken as to the location of the land they 
surveyed and purchased. The island lay in view of Smith's 
Point on the Virginia side of the bay, still nearer to Cedar 
straits, and nearer still to ' k Smith's Island," the terminal 
points of the Calvert and Scarburg line on the eastern 
shore. They knew an east and west line. The sun and 
the north star shone then as now; no compass was needed 
to determine it; suggestions of mistakes as to the loca- 
tion of the island in the bay by Smith and Stevens in order 
to destroy plain facts will hardly be seriously regarded. 
I cannot understand how these grants containing such 
recitals could have been made to such men by both govern- 
ments if there had never been any divisional line run 
between the colonies except east of the Pocomoke river, 
which is fifteen miles distant from the Chesapeake bay 
where the acknowledged line crosses it, if from that river 
the line meandered down through it and the bay to Cedar 
straits. Smith and Stevens must have known that no east 
and west line could possibly touch the island they were 
buying and selling. In other words, to maintain the 
crooked line theory, Sir William Berkley, Lord Balti- 
more, Colonel Stevens, and Henry Smith, the two latter 
especially, as they were on the ground, are assumed to 
have been utterly ignorant of what they were doing (when 
the reverse is the reasonable presumption.) 



78 



It must be borne in mind that Colonel William Stevens 
was, as shown and urged zealously before us, the richest 
man and largest land speculator on the eastern shore. He 
was shown to be the founder of Rehoboth, one of Lord 
Baltimore's commissioners to lay off Somerset county, and 
one of the justices of the peace summoned by Philip Cal- 
vert to aid and advise him in laying off the Calvert and 
Scarborough line. It was therefore impossible for him 
not to know all the facts; and when he had a survey 
made and recorded to meet the Virginia survey and patent 
for 1,000 acres and thus connect his with the Virginia 
1,000 acres grant, and called for the divisional line between 
the States from Jane's island or the western angle as the 
line of his patent, it is evidence overwhelming of the ex- 
istence of such a divisional line run by Calvert and Scar- 
borough. 

It is thus that the acts and lines on Smith's Island, 
demonstrate the truth of the position that the divisional 
line of 1668 ran, as I contend it did, from the bay to the 
ocean. 

Again, to show that the line prolonged from Jane's 
Island, the Watkins Point of Calvert and Scarborough, 
was a well-known and perfectly-recognized line, carefully 
marked, and running east and west through what is now 
called Smith's Island in the bay, I refer to the patent 
granted in 1703, for some cause or other disregarding the 
grant to Henry Smith, in 1667, for the Virginia portion of 
it in Accomac county, by the Governor of Virginia to 
Francis McKennie, Arcadia Welborne, and others. In this 
patent the northern boundary is thus described: " Begin- 
ning at a marked lightwood stump standing near ISTanti- 
coke sound, thence by marked trees and over marshes 
and guts, west one thousand and twenty poles to the main; 
bay of Chesapeake." 

The grant of Lord Baltimore to Pittscraft said the line 
was surveyed and the survey recorded. This Virginia 
grant, in 1703, found the corner tree in the sound (then 
called Nanticoke, now Tangier) marked and the marked 



79 



line-trees all along the line, which was 1,020 poles long. 
How could the distance of 1,020 poles be ascertained 
without a survey? Can that be pronounced false, too, 
after Mr. Junken finds by his late survey that the width 
of the island on that line, after allowing for the washing 
away, which is proved and admitted, was about 1,020 
poles ? 

In August, 1693, Henry Smith, the grantee in both 
patents, and a citizen of Somerset county, Maryland, sold 
to John Tyler, of the same county and province, two 
hundred acres of land, which the counsel on both sides 
located by elaborate proof and argument on the eastern 
side of the island, about one half of it north aud the 
other half south of the line which Virginia claimed as the 
prolongation west of the line of Calvert and Scarburg. 
He set forth in the conveyance both his patents from 
Maryland and Virginia carefully by the metes and bounds 
therein given, and then describes the two hundred acres 
he was conveying thus : 

"A part or parcel of land taken out of the aforesaid 
2,000 acres of land granted as aforesaid, viz, by Sir Wm, 
Berkley and the Lord Baltimore, as by the several patents 
more amply and fully appear," &c. 

I attach more importance to the facts set forth in this 
deed than to any other, because it was made by the man to 
whom both grants issued, a man who knew T all the facts, 
who could have no interest in reciting falsehoods, himself 
a citizen of Maryland, conveying to another citizen of Mary- 
laud. While the action of Calvert and Scarbur£ was 
yet fresh, and doubtless within his personal knowledge, he 
went before two justices of the peace of Somerset county, 
with the deed, and had the following certificate indorsed 
on it : 

" Hen. Smith. [Sealed.] 
" Signed, sealed, and delivered in sight 
and presence of us, 

" Sam'l Alexander. 
" J. Gray. 



\ 



80 

" In memorandum that this day, viz, the 8th day of 
August, in the 5th year of their ma'ties reign, Win. and 
Mary, over England, &c, Anno Domini, 1693. Before 
Thomas Newbold and Jno. King, gents., two of their 
ma'ties justices of the peace for the county of Somerset, in 
the province of Maryland, came the within-named Henry 
Smith, in his proper person, and did acknowledge the 
within-mentioned land containing two hundred acres, part 
thereof lying in Virginia and part in Maryland, to be right 
of him, the within-named Jno. Tyler, and his heirs forever ; 
and for this acknowledgment, quit claim, and agreement 
the said Jno. hath given him, the said Henry, nine thou- 
sand pounds of tobacco. 

"Ths. Newbold. 
"Jno. King. 

" Coram nobis. 

" Entered the 17th of August, 1603, pr. 

" Jno. West, Cir. cr." 

It seems to be impossible that this deed, containing such 
recitals, could have been made b}^, to, and before persons 
so familiar, from the very nature of things, with all the 
facts, if, as is now assumed, Calvert and Scarburg never 
laid down any line west of the Pocomoke river, but fol- 
lowed its meanders to the bay and thence to Cedar straits. 

Again, in August, 1718, John Caldwell, attorney for 
John Smith, grandson of the original grantee in both pat- 
ents, conveyed 150 acres of land to Arthur Parks and 
Thomas Summers, which was shown by other deeds and 
proofs to be very near the protraction of the Calvert-Scar- 
burg line, which he bounded as follows: 

" Beginning where an east and west line enters the marsh 
from Jane's Island, being the Virginia line, through the 
aforesaid Smith's Island, where the said line enters the 
marsh upon the west side of a creek called Dogwood 
creek," &c. 

It will be observed that each deed keeps up the call 
for the boundary line between Maryland and Virginia 
about the place where the Calvert and Scarburg line pro- 
tracted would cross the island, and all call for an east 



81 



and west line across it. These facts do not rest on tradi- 
tion, and are not dependent on human memory or human 
prejudice; the} 7 are the record of facts made at the time 
without reference to this or any other dispute. As late as 
1848 Richard Evans conveyed to John Marshall, of Acco- 
mac county, a resident of the southern part of Smith's Island, 
a tract of land described thus : " On the north by the lands 
of Elijah Evans, of Somerset Co., Md., and the State line 
separating the States of Ya. and Md." This tract is about 
the point where the traditionary line from Jane's Island 
crosses Smith's Island, perhaps just south of it. It is un- 
necessary to elaborate further by tracing the deeds over 
this island. Both sides admitted before us, indeed the 
facts proved conclusively, the existence of a divisional line 
between the States, running nearly due east and west 
across it, Virgiuia claiming a continuation of the Calvert 
and Scarburg line, and Maryland contending for a line 
from Horse Hammock on the eastern to Sassafras Ham- 
mock on the western side of the island. Either line estab- 
lishes the proposition I maintain. They are about a mile 
apart; that of Maryland being over three miles and that of 
Virginia over four miles north of any possible east and west 
divisional line from Cedar straits, while both are near and 
necessarily result from and are the product of the Calvert 
and Scarburg line to the westernmost angle on the main 
shore. Many circumstances combined, especially of late, 
to make as many of the citizens and residents of Smith's 
Island as could possibly do so become citizens of Mary- 
land. The island was so far from Drummondtown, or 
any other settled portion of Accomac county, Virginia, and 
the means of reaching these, especially in the winter or in 
stormy weather, so precarious that the inhabitants of the 
Virginia portion of the island were almost deprived of the 
rights of citizenship anywhere. On the other hand, the 
island was near the Maryland shore. The largest and 
most populous portion of it was unquestionably in Mary- 
land. Crisfield, on the main shore, and other points in 
Somerset county, were springing up, and the business and 
6 



82 



social intercourse of the islanders was almost exclusively 
with Maryland. Two justices of the peace, who could take 
acknowledgments of deeds or decide cases, were kept in 
commission by Maryland. In 1835 she established an elec- 
tion precinct on the island, and her commissioners, with- 
out going near "Horse Hammock," where John Tyler 
lived, hearing that he was perhaps the best qualified man 
on the island forjudge of elections or justice of the peace, 
laid off the election precinct so as to take in his house, and 
he was soon afterwards qualified as one of the justices. It 
does not seem to me, under all the circumstances, that the 
action of Maryland, then or since, in regard to that line is 
sufficient to give title by possession if the divisional line is 
where all the patents and deeds place it, viz: a prolonga- 
tion of the Calvert and Scarborough line. It is perhaps 
unnecessary for me to set forth further the evidence as to 
the recognized stones and trees, or the fact as to the mar- 
riage house along the traditional line north of the Horse 
Hammock line. Many of the voters on the island north 
of the Maryland precinct voted in Virginia as late as 1855, 
in the race between Governor Wise and Mr. Flournoy. I 
suppose, however, they generally voted in Maryland. 

It seems to me that the patents, deeds, marks, and tra- 
ditions ought not to be abandoned for a precinct line which 
recognizes neither the Cedar straits nor the Calvert and 
Scarborough line, especially as it was established so re- 
cently by men who never saw it. 

If the action of the Maryland authorities in regard to 
the election precinct and other matters on Smith's Island 
is to be regarded as conclusive or highly persuasive as to 
her right, the action of her courts ought to be more so. 
The case of the schooner "Fashion" was one of the prin- 
cipal causes leading to the passage by Maryland of the act 
of 1852, out of which this commission grew, and may be 
briefly stated as follows: Some time previous to 1851 Mary- 
land had passed a stringent law prohibiting the dredging 
for oysters in her waters. John Tyler, sometimes called 
John Tyler of Severn, was captain of the "Fashion," and 



83 



was dredging for oysters on the Little Rock, in Tangier 
sound, in what was clearly Maryland waters if Cedar straits 
is the boundary line, and in what is clearly Virginia waters 
if the Culvert and Scarborough line extended to the west- 
ern angle at Jane's Island. The volume containing the 
Maryland and Virginia Reports of 1872, from pages 225 
to 240, gives the pleadings and court entries in full. They 
were laid before us the record in the case. Distinguished 
counsel appeared on both sides, J. W. Crisfield, W. S. 
Waters, and William Daniel being attorneys for John Ty- 
ler, and William Tingle and I. D. Jones for Cullen. While 
there was a good deal of testimony taken in regard to it, it 
is very clearly stated in the deposition of John Tyler, taken 
at Crisfield, Maryland, June 27, 1876, as the following 
extract shows : 

" 3d question by same. Were you concerned in the trial 
of the schooner Fashion for dredging for oysters unlawfully 
in Tangier sound in 1851, and how? 

"Answer. I was captain of the vessel, and w T as arrested 
by Captain John Cullen, who was on board of the steamer 
Herald, and was carried before Justice J. B. Stevenson, 
of Maryland, and was convicted, and the vessel was con- 
demned. 

"4th question by same. Where were you dredging? 

"Answer. I was dredging on the Little Rock, which is 
between Great Rock and Filliby's Rock. 

" 5th question by same. Were you present when the 
appeal in the case was tried at Princess Anne? 

"Answer. I was. 

"6th question by same. Did the question arise in the 
case as to where the State line ran from Smith's Island to 
Little Annamessex, or what was the question in the case? 

"Answer. That was my only plea, that I was dredging 
in Virginia waters. 

" 7th question by same. Did you hear the testimony in 
the case, and who were examined as witnesses? 

" Answer. I heard the testimony, and Thomas Tyler, 
my grandfather, William Tyler, James H. Hoffman, W. 
G-. Hoffman, and others, were my witnesses. The State 
had Mr. James Lawson and other old gentlemen from the 
lower part of Annamessex neck on her behalf. 



84 



" 8th question by same. Were other parts of the line 
between the States inquired into, and what parts? 

"Answer. My grandfather I had heard speak a great 
deal about the line, and I rested on what he had told me 
about the line, and dredged in accordance with what he 
told me. The line across the island, and I believe, also, 
the line extending from the island as far as to Pitt's creek 
on the Pocomoke river, was discussed in court. 

"9th question by same. State what was proved as to- 
the line across Smith's Island and the line across the 
sound ? 

"Answer. My grandfather said that the line ran from 
the stone three quarters of a mile above Horse Hammock, 
west to the baj T , and from the stone easterly to the mouth 
of Little Annamessex river. He and Mr. James Lawson, 
the two oldest men summoned in the case, agreed as to 
the line, and upon their evidence I to as cleared. Mr. James 
Lawson was summoned for the State of Maryland and my 
grandfather was summoned on my side. 

" 10th question by same. Was the evidence sustained by- 
other witnesses in the cause? 

"Answer. It was (I think) by all who testified about the 
line. The old witnesses testified on that point." 

When asked as to the location of Filliby's Rock, the 
Little Rock, and the Great Rock, he said^ 

"Answer. They all three lie east of the sound channel ; 
and Filliby's Rock is farthest north, the northern part of 
which is perhaps one quarter of a mile south of the light- 
house near Jane's Island. The Little Rock is farther south, 
perhaps from one half to three quarters of a mile south of 
the light-house aforesaid, it lying between Filliby's and 
the Great Rock. Great Rock lies southwest of Little 
Rock; the western part goes down to the channel, but the 
great body of it lies towards the Annamessex shore. By 
rock we mean a bed of oysters ." 

It will thus be seen that before this controversy arose 
the court of Somerset county, Maryland, reversed the de- 
cision of the justice of the peace, acquitted John Tyler, and 
released his schooner when he was dredging not less than 
three miles north of Cedar straits, on the east or Maryland 
side of Tangier sound, and therefore not protected even 



85 



"by the Horse Hammock and Sassafras Hammock line 
•across Smith's Island, solely upon the ground thai he was 
dredging in Virginia waters, being south of the boundary line 
between Maryland and Virginia on Jane's Island, extend- 
ing, as was proved, over Smith's Island. In short he was 
protected expressly by a judicial recognition of the Calvert 
.and Scarburg line, as, I insist, it was located by them. 
Afterwards Tyler sued Mr. Culleu for damages for seizing 
and detaining the Fashion, and after verdict a judgment 
-was rendered against him, which he paid. Mr. Cull en 
testified that his counsel, Judge Tingle, and Mr. Crisfield, 
. the attorney for Tyler, both spoken of as able lawyers, 
agreed that he had to pay the judgment, but they thought 
he had a good case to petition the Legislature of 2vfaryland 
for relief on, as he was an officer who tnought he was dis- 
charging his duty in making the seizures. This case led 
to the subsequent legislative action. 

It is hard to understand how Maryland through her 
courts and her lawyers could have given a more absolute 
recognition of Virginia's ricrht under the line of 1668 than 
the " Fashion " case presents. It is certain that there was 
no ground for believing that Cedar straits was the charter 
Watkius Point, or such judgments never would have been 
rendered by the Maryland courts, with such lawyers de- 
fending. It was shown clearly before us that Maryland 
never bad exercised exclusive jurisdiction over any por- 
tion of the waters of Tangier sound south of the line of 
Calvert and Scarburg at the Watkins Point claimed by 
Virginia, and that she not only never exercised exclusive 
jurisdiction over any portion of the waters of Pocomoke 
bay, but that Virginia repeatedly asserted her right of 
sovereignty over the whole of the bay of Pocomoke; she 
-established police and revenue regulations over it and a 
citizen of Maryland was killed in an affray originating in 
the effort of Virginia officials to enforce a very rigorous 
construction of the Virginia laws over the right of oyster- 
ing in the bay. Virginia paid five eighths and Maryland 
three eighths of all light-house and other expenses on it. 



86 



Virginia alone could try foreigners for offenses committed 
on foreigners, and in many other forms asserted her su- 
perior right. I think it may be safe]} 7 said that Maryland 
never asserted more than a common right with Virginia 
in Pocomoke bay, and never claimed exclusive jurisdiction 
over an}- part of its waters. 

Before speaking of the effect to be given to possession, 
I will close this long and somewhat disconnected review of 
the history of this controversy, and of the reasons which 
controlled me in reaching the conclusions I have arrived 
at, by noticing, as briefly as I can, the effect which the last 
or closing line has on the question. 

Although it was argued, I think it can hardly be seri- 
ously contended, that the language used in describing the 
closing line of the charter to Lord Baltimore, which calls 
for the " shortest line" or a straight line (which is always 
the shortest) from Cinquack or Smith's Point to Watkins 
Point, throws any light on the question as to the location 
of the true Watkins Point on the eastern shore. Whether 
it was at " Onancoch," as Lord Baltimore first claimed, or 
at u Nanticoke" as Virginia asserted, or at the lower point 
of Watts Island, as the Maryland commissioners lately 
believed, or at Cedar straits, as Maryland now assumes, or 
at the westernmost angle of the promontory on the Calvert 
and Scarborough line of 1668, as Virginia insists it is, the 
closing line from the western side of the Chesapeake must 
be drawn straight to it, and can be drawn as w T ell to one 
as the other, without throwing any light on which is the 
true beginning. The closing line must run to the begin- 
ning. The survey of the charter could not otherwise be 
closed. " Watkins Point " is nowhere assumed, either in 
the charter or in any controversy between the colonies or 
the States, to be the point or place nearest the western side 
of the bay at the mouth of the Potomac. It is not certain 
that Captain Smith knew where the mouth of the Potomac 
was when he named " Watkins Point." It is very certain 
that he did not so name it, because it was the land nearest 
to the place he called "Cinquack" on the western side of 



87 



the bay. Wherever he fixed Watkins Point is the true 
charter line of division, which both States have directed us 
to ascertain and report; and though there may be a dozen 
places or angles or points on the eastern shore nearer to 
Smith's Point orCinquack than John Smith's Watkins Point, 
we cannot close the Maryland charter boundary by running 
the line to any of them. The fact that no one, either under 
the colonies or the States, in all the controversies relative 
to the true initial point of Lord Baltimore's charter, ever 
suggested that the call in the closing line for the "shortest 
line" to the beginning, threw any light as to where the 
beginning point was, or that it controlled the first line that 
the charter required to be run, or determined its locality, 
is highly persuasive evidence, if any is needed, to show 
that there is no real merit in the argument on tbat point. 

I have up to this point avoided speaking of the admitted 
fact that Maryland has always held possession of and exer- 
cised jurisdiction over all the land west of the Pocomoke 
river and south of the line of Calvert and Scarburg, which 
I have been contending is the true divisonal line, because, 
if I have failed to show that I am right as to that line, 
there can be no question as to the right of Maryland to all 
the land west of-Pocoraoke river down to Cedar straits. I 
shall assume, therefore, when speaking of the effect of pos- 
session, that I am right hs to the line of Calvert and Scar- 
burg extending from the Chesapeake bay to the ocean, 
and that it is the true southern line of Lord Baltimore's 
charter on the eastern shore. That being so, what rights 
have been acquired by possession of the land south of the 
true line? The King, in the charter of 1632, after setting 
out the boundaries of the grant, adds, 14 so that all that 
tract of land divided by the line aforesaid drawn between 
the main ocean and Watkins Point unto the promontory 
called Cape Charles and all its appurtenances do remain 
entirely excepted to us, our heirs and successors forever." 
With that express restriction and reservation in the char- 
ter, Lord Baltimore could not, either by laying off the 
county of Somerset to Cedar straits, or to Onancock, or to 



88 



any point south of his charter line, have acquired title by 
possession against the King. Certainly not without avow- 
ing his intention to hold it, even though it was outside of 
his charter. Virginia remained a royal province till she 
declared her independence in 1776. Her right and title 
was the right and title of the King up to that time. She 
could not, if she had tried, have deprived the King of his 
sovereign jurisdiction overall the territory he had "entirely 
excepted" in the charter for Maryland to himself, his heirs 
and successors forever, and there is no evidence that she 
ever attempted to do so. Neither the possession of Lord 
Baltimore nor the neglect or ignorance of the agents of 
the King in Virginia in allowing him to hold south of his 
charter line could destroy or weaken the title of the King 
to the property he had so expressly reserved. It is certain 
that Virginia never granted anything to Lord Baltimore 
south of his charter line. Her complaint to the King in 
1682, which I have already set forth, proves that she was 
more aggrieved at what Calvert and Scarburg had given 
him than disposed to grant him any more ; and it is equally 
certain that he received no additional grant from the King, 
and never asserted any right, by possession or otherwise, 
south of the line of his charter. The letters sent by the 
King's order to Lord Baltimore, relative to his boundaries, 
and to the settlement of his controversy with William 
Penn, assume that the line fixed by the commissioners in 
1668 as the southern boundary of his charter was conclu- 
sive, as Lord Baltimore's own letters, answers to the com- 
missioners in London, and his conveyances and orders 
assumed that it was. Therefore the presumption of a grant 
which, after possession for a great length of time, arises 
as between private individuals, does not operate in the 
matter we are considering. That was beyond question the 
English law prior to the Revolution. 

Looking over the whole ground, it is not difficult to un- 
derstand how Maryland happened to retain the land west 
of the Pocomoke and south of the charter line. General 
Michler, in his report in 1859, says " that the land lying 



89 



south of the prolonged or broken line is principally marsh, 
the area of the firm land south of it and west of the Poco- 
moke not exceeding eight square miles." The whole 
quantity of land south of the line, on the west side of the 
river, is about twenty-three square miles, or less than 
15,000 acres, and the firm land is only about 5,000 acres. 
The line of the Pocomoke river to the western angle 
of the point on the bay is fifteen miles long, so that 
there was less than 1,000 acres of land of any sort, and 
only about 300 acres of firm land on an average to the 
mile along the whole line. It could hardly be supposed 
or expected, at a time when land was cheap and popula- 
tion sparse, that men who wanted to locate in Virginia 
would seek to obtain grants from her authorities and set- 
tle where they would be separated from the great body of 
Accornac county, deprived of all the protection and ad- 
vantage of government, to live in isolated spots surrounded 
by swamps. It must not be forgotten that religious intol- 
erance prevailed at that time to an extent which we would 
now regard as absurd, if not impossible. The few scat- 
tered Virginians who could have been located or " sealed " 
as it was then called, on the spots of firm ground would 
have felt very much like convicts, surrounded by Quakers, 
Catholics, and other non-conformists, whom they had 
perhaps aided in driving out of Virginia because of their 
heretical opinions. 

A very different condition existed as to the settlement 
of this strip of land under the government of Maryland. 
Lord Baltimore had, as early as 1661-'62, urged his officers 
to push his settlements as far and as rapidly southward on 
the eastern shore as possible, and while Virginia was 
pushing north on the eastern side of the Pocomoke so 
rapidly that before 1668 she had granted over 33,000 acres, 
or more than fifty square miles, north of the line established 
by Calvert and Scarburg, Maryland was pushing south, on 
the west side of that river, with all possible energy. Lord 
Baltimore had made a number of grants, as the patents 
laid before us t bowed, on the west side south of the Cal- 



90 



vert an<l Scarbnrg line from 1664 to 1667. He had laid 
off the county of Somerset in 1666 so as to embrace all 
the land west of the river and north of Pocomoke bay. He 
had established " hundreds," and laid out roads, organized 
the militia, and had all the settlers looking to his officials 
for protection and assistance. When the Calvert and Scar- 
burg line was established he had covenanted to protect all 
the grants made b} r Virginia north of the line. No pro- 
tection was given by Virginia to his grantees south of it. 
Of course all who could, clung to the Maryland govern- 
ment for protection, all west of the Pocomoke did so, as 
there were no Virginia grants there to call for the line 
or for protection under the agreement. The Maryland 
courts were convenient; everything, in short, combined to 
make Virginia neglect and Maryland hold on to the slip of 
land south of the line and west of the Pocomoke, while 
every interest united to cause the lines east of it to be care- 
fully maintained. Scarburg does not appear any more 
after 1668. It was not shown when he died. Lord Balti- 
more, in 167l-'72, in the recitals in the grants he made 
under the agreement of 1668, speaks of him as u the late 
surveyor general of Virginia." Very few patents were 
issued by Lord Baltimore for any land south of the line 
west of the river for several years after 1668, only one or 
two for five years, and very few for seven or eight, until it 
became apparent that the settlers still clung to Maryland, 
and Virginia took no steps to interfere. Probably after 
Scarburg was gone hardly any one cared anything about 
that detached fragment of land. He must have been well 
advanced in years when the line was run, as he was a rep- 
resentative of Accomac county in the Grand Assembly of 
Virginia thirty-eight years before he ran the line. Soon 
after 1668 Herrman's map appeared ; it purported to be a 
map of Virginia and Maryland, " published by authority of 
his majesty's royal license and particular privileges * * * 
for tourteen years from the year of our Lord 1673.'' It laid 
down the Calvert and Scarburg line straight from the 
ocean to the Chesapeake, drew the double rows of trees 



91 



along the line east of the Pocomoke, but made the line 
run through the bay of Pocomoke to the southern angle 
at Cedar straits showing no land south of the straight line 
of 1668 west of the Pocomoke river. Doubtless it was 
extensively circulated in both colonies, and was well cal- 
culated to deceive, and no doubt did deceive the people of 
Virginia and the authorities by making them believe that 
Virginia had no land to grant on the eastern shore west of 
the Pocomoke. Mr. Jefferson's map, as well as that of 
Fry & Jefferson, follow Herrman's. They evidently copied 
theirs from his. The line of Calvert and Scarburg is 
marked, and the date of it given on each of them ; that 
of Mr. Jefferson extending it as Herrman had done, 
straight to Smith's Point, buc throwing it down so as to 
cross Pocomoke bay six or eight miles lower than where 
we know it actually is, and leaving no land in their pro- 
traction of the Calvert and Scarborough line in Virginia 
west of the Pocomoke. All of them are now known to 
be palpably wrong, but they deceived Virginia as to her 
rights, and show how it was that Maryland retained pos- 
session of the land which lay south of her charter line on 
the west side of the Pocomoke river. It was a rule in the 
English colonial office to require governors and propri- 
etors of colonies and grants in America to report, in 
answer to interrogatories, such facts relative to the con- 
dition of their provinces, their boundaries, trade, etc., as 
the "Lords of the Committee of Trade and Plantations" 
required. 

The reply and complaint of Virginia in 1682, claiming 
that the Calvert and Scarborough line had been unfair to 
her by not fixing "Watkins Point" at Nanticoke, fifteen 
miles north of the line they agreed on, was in answer to 
interrogatories of that sort. We have before us, from 
pages 217 to 222 of the Book of Reports and Statements, 
etc., of 1872, a series of similar questions propounded to 
Lord Baltimore on the 10th of April, 1678. The tenth 
question is: "What are the boundaries, longitude, lat- 
itude, and contents of land within the province? what num.- 



92 



ber of acres patented, settled or unsettled, and how much 
of manurable land?" Lord Baltimore's answer to this 
question as to his boundaries has been given in another 
connection, but it is better perhaps to repeat it here. He 
says: "To the 10th I answer, that the boundarys, longi- 
tute, and latitude of this province are well described and 
set forth in a late map or chart of this province lately 
made out and prepared by one Augustine Herrman, an 
inhabitant of the said province, and printed and publicly 
sold in London by his Majisty's license, to which I humbly 
refer for greater certainty, and not to give their Lordships 
the trouble of a large, tedious description here." 

Nothing appears to indicate that the commissioners de- 
manded any more specific description of the boundaries. 
Herrman had not only drawn the divisional line straight 
from the ocean to the bay, but he had with great minute- 
ness described his line as the line laid down by Calvert 
and Scarborough. Lord Baltimore adopted it, and the 
commissioners accepted it. Michler and others have es- 
tablished and located it. Lord Baltimore never claimed 
nor did Virginia or the King ever concede that he was 
entitled to any land or water south of it. His holding, 
therefore, south of the line, west of the Pocomoke river, 
was simply by mistake on both sides, and not by either 
claim of right on one side or by concession or abandon- 
ment of right on the other. 

I am satisfied that the English authorities before the 
Revolution all agree that such holding under a charter 
containing such absolute exceptions in favor of the King 
to all the land and its appurtenances south of the charter 
line did not vest the title in Lord Baltimore, nor abridge 
in any way the King's absolute right to take it away at 
any time. This mistake on both sides was brought about 
in great part by erroneous maps, which were circulated 
extensively, and relied on without examination as to their 
correctness, as all of them showed that Virginia had no 
land west of the Pocomoke river by the map-makers' pro- 
traction of the liue of Calvert and Scarborough. 



93 



If I am right in the assumption that Maryland acquired 
no right either from the King of Virginia by possession 
under the circumstances I have indicated, she had no title 
to it when the colonies threw off their allegiance to the 
King. The next question is, what title has she acquired 
since? Virginia, by the 21st section of her Constitution 
of 1776, already referred to, provided that "the territories 
contained within the charters erecting the colonies of 
Maryland, Pennsylvania, isTorth and South Carolina are 
hereby ceded, released, and forever confirmed to the people 
of these colonies respectively." 

This provision certainly contained no grant beyond what 
the charter of Maryland gave her, and parted with nothing 
of hers which Maryland had in possession outside of her 
charter line. 

The compact between the then sovereign and independ- 
ent States of Maryland and Virginia, entered into in 1785, 
while it repeatedly recognizes the Pocomoke river as being 
within the limits of Virginia, as it undoubtedly is from 
the point where the Calvert and Scarburg line crosses it 
to is mouth, if I. am correct in my construction of their 
action, and as it undoubtedly is not for any distance what- 
ever if the crooked line from Cedar straits is accepted as 
the true one, in the tenth article makes the following pro- 
visions : 

"Tenth. All piracies, crimes, or offenses committed on 
that part of Chesapeake bay which lies within the limits 
of Virginia, or that part of the said bay where the line of 
division from the south of Potowmack river (now called 
Smith's Point) to Watkins Point, near the mouth of the 
Pocomoke river, may be doubtful; and on the part of Poco- 
moke river, within, the limits of Virginia, or where the line of 
division between the two States upon the said river is 
doubtful, by any persons not citizens of the Common- 
wealth of Virginia, against the citizens of Maryland, shall 
be tried in the court of the State of Maryland which hatb 
legal cognizance of such offense. And all piracies, crimes, 
and offenses committed on the before-mentioned parts of 
Chesapeake bay and Pocomoke river, by any persons not 
citizens of Maryland, against any citizen of Virginia, shall 



94 



be tried in the court of the Commonwealth of Virginia 
which hath legal cognizance of such offense. All piracies, 
crimes, and offenses committed on the said parts of Chesa- 
peake bay and Pocomoke river, by persons not citizens of 
eifher State, against persons not citizens of either State, 
shall be tried in the court of the Commonwealth of Vir- 
ginia having legal cognizance of such offenses." 

If Maryland's holding down to Cedar straits had been 
adverse and avowed, and she had maintained her un- 
doubted right to that point as the Watkins Point of her 
charter, it is hard to understand why she would have 
made or agreed to a provision which substantially admit- 
ted that the Watkins Point of the charter was doubtful. 
There could have been no doubt about it if Maryland had 
maintained and Virginia had admitted that " Cedar straits " 
was the charter point. Time does not run against the Com- 
monwealth any more than it does against the King. When 
the holding was either doubtful or subject to future adjust- 
ment it is clearly excluded from all principles under which 
title by possession can be acquired from a sovereign. The 
language of that section clearly concedes a doubt by both 
States, both on the Chesapeake bay and Pocomoke river, 
which neither desired to secure any advantage Irom over 
the other, by reason of accidental possession, as all their 
future legislation on the subject shows. That uncertainty 
and doubt became more serious as population grew more 
dense and the trade in oysters became the subject of State 
regulation and taxation. 

The case of the " Fashion " is a prominent example, which 
need not be repeated. It illustrates this branch of the case 
very clearly. 

I will not prolong this already too prolix statement by 
noticing any of the old acts of the States after the adoption 
of the Constitution. Those of recent date make the ques- 
tion clear, both as to the doubt regarding the true line and 
the friendly character of the holding by either of whatever 
might be found to belong to the other. On the 29th of 
March, 1852, the Legislature of Maryland passed an act 



95 



which recites that " the true location of that part of the 
line separating the State of Virginia from Maryland, inter- 
vening between Smith's Point at the mouth of the Potomac river 
and the Atlantic ocean, has from lapse of time become uncertain, 
thereby involving innocent parties in difficulties to them 
irremediable, therefore Virginia is invited to appoint joint 
-commissioners to retrace that portion of the line and to 
mark the same by the erection of suitable monuments at 
proper points." For some unexplained reason Virginia 
did not accept this invitation until 1858. Under these acts 
Messrs. Lee and McDonald were appointed by their respect- 
ive States to retrace and mark the doubtful divisional line on 
the eastern shore. Lieutenant Michler's survey and report 
is part of their work. Their report and Michler's were 
referred by the Legislature of Maryland to a select com- 
mittee, which made a report, saying that the committee 
" did not find the uncertainties described in chapter 60 to 
be existing in the boundary between Smith's Point at the 
mouth of Potomac river and the Atlantic;" and they say 
44 it appears that the commissioners of 1668 established and 
marked the whole boundary across the peninsula or cher- 
sonese by a line between Pocomoke river and the marsh 
of the seaside, beginning therefor on the Pocomoke river, 
east by compass from the extremest point of the western- 
most angle of said Watkius Point, as by them defined;" 
"and that consequent upon this action of the commission- 
ers, the divisional line across the bay was and is now 
known and recognized to be a line from Smith's Point, at 
the mouth of the Potomac, to this same westernmost angle 
of Watkins Point, and these are the true limits of this 
State to the south and west." And they reported a bill 
accordingly ; but it was amended in its passage by striking 
out "westernmost" and inserting "southernmost," as 
descriptive of the line from Smith's Point across the bay. 

The committee reported the true state of facts, as Mich- 
ler's report shows, but the Legislature changed it. jSo 
reason was shown for the change so far as I have been 
able to ascertain. The committee's report was unanimous, 



96 



and its conclusions after examination are entitled to full 
consideration, notwithstanding the action of the House,, 
which cannot usually examine all the facts as well as a 
committee. However that may he, the action taken by 
the States since the compact of 1785 was entered into con- 
firms the admission therein made and assumed, that the 
divisional line across the eastern shore was doubtful, 
neither asserting a positive claim to any fixed initial point 
nor claiming, as against the other, anything either might 
happen to hold by mistake as to their rights. 

The difference between the Maryland Legislature and its 
committee illustrates how honestly these differences of 
opinion might exist. Their action proves further that 
both agreed that the true line was the line of Calvert and' 
Scarborough. They did not by their legislation undertake 
to establish a new line ; they only proposed to retrace and 
mark an old one. As there never had been any other run 
or attempted to be run except that established in 1668 by 
Calvert and Scarborough, of course that was what they 
both agreed should be the boundary between them when 
ascertained, regardless of any encroachments by one or the 
other while ignorant of their rights. 

The acts of the States appointing this commission are 
framed in the same spirit and guard the rights of their 
citizens against any injury which might otherwise follow 
by reason of the mistakes by possession growing out of the 
uncertainty as to the true divisional line. The proviso 
referred to is as follows : 

"Provided, however, That neither of the said States nor 
the citizens thereof shall, by the decision of the said arbi- 
trators, be deprived of any of the rights and privileges 
enumerated and set forth in the compact between them 
entered into in the year seventeen hundred and eighty five, 
but that the same shall remain to and be enjoyed by said 
States and the citizens thereof forever ; and provided further , 
that the landholders on either side of the line of boundary 
between the said States, as the same may be ascertained 
and determined by the said award, shall in no manner be 
disturbed thereby in their title to and possession of their 



97 



lands as they may be at the date of said award, but shall 
in any case hold and possess the same as if their said title 
and possession had been derived under the laws of the 
State in which by the fixing of the said line by the terms 
of the said award, they may be ascertained to be." 

It would unquestionably be better that the small strip of 
country west of the Pocomoke river and south of the Calvert 
and Scarborough line should be transferred to Maryland. 
But I am unable to see from the view I take of the action 
of the commissioners in 1668, and the subsequent action 
of the two colonies and States, how I can find the facts to 
be otherwise than as set forth in the foregoing statement. 

In order to illustrate more clearly where I think the 
true line runs than I can do by description, I have pro- 
cured two copies of the map of Thomas I. Lee, the Mary- 
land commissioner of 1860, and have protracted his line 
of Calvert and Scarburg from the Pocomoke river to Wat- 
kins Point on the Chesapeake, thence over Smith's Island, 
and from the western side of that island. I have drawn a 
straight line to Smith's Point; I have also marked in red 
ink, with substantial accuracy, the line agreed on by the 
other arbitrators, so that a map may be delivered to each 
State as a part of my view of the case. I do not pretend 
that the charter line runs from Watkins Point west over 
Smith's Island; and it is well known that Smith's Point, 
at the mouth of the Potomac, is not the charter point from 
which its closing line starts to cross the bay. That line 
was a straight one from " Cinquack," which was some- 
where about six miles south of Smith's Point to Watkins 
Point on the eastern shore. " Cinquack " seems to have 
been abandoned long ago, certainly as early as 1785, when 
the compact was entered into, and the east and west line 
was by the action of Lord Baltimore and the Governor of 
Virginia protracted from the " Watkins Point " of Calvert 
and Scarburg as early as 1667 and 1682, as an equitable 
division of an outlying, and for a time neglected, island. 

James B. Beck, , 
Of Kentucky. 

7 



